As many as 15 Muslim girls have been booked in Tumakuru and 58 students were suspended in Shivamogga
Young women and girls in many parts of Karnataka were not allowed to enter schools and colleges on Saturday as they arrived in hijabs, despite a court order, as the issue showed no signs of abating after its flare-up about a fortnight ago that prompted the government to close down institutions for a couple of days.
Chief Minister Basavaraj Bommai has blamed 'outsiders' for the problem and said the issue would be resolved soon.
"The problem is being created by outsiders. The issue would be resolved by the principal, students and the parents. The atmosphere needs to be calmed. I am getting all the information about the happenings in the state," Mr Bommai told reporters in Bengaluru.
According to the information received, as many as 15 Muslim girls have been booked in Tumakuru and 58 students were suspended in Shivamogga for staging demonstrations outside their colleges.
Here are the LIVE updates on the Hijab Row:
AG : (continuing 3rd point) Foundation of religion must be based on that. It must be co-existent with the religion.
4. Binding nature. If it is optional, then it is not essential. If wearing of it is not obligatory, then it is not essential.
AG: From a reading of these cases, I would carve out five principles for the present case :
1.The practise must be fundamental to the religion.
2 If the practise is not followed, it will change the religion itself.
3. Practice must precede the birth of religion.
AG quotes from Triple Talaq case : A practice claimed to be essential must be mandatory and not optional.
AG reads the conclusions in Triple Talaq case :
1. Views of religious denomination, though significant are not determinative in essentiality of practice.
2. Courts have central role.
AG refers to Shayara Bano (Triple Talaq) case.
AG continues referring to Sabarimala case judgment.
AG: Article 25 has different sections. To establish right under Article 25, they should first prove religious practise, then that it is an essential religious practice, then that ERP does not come in conflict with public order, morality or health or any other fundamental right.
AG : His (Munshi's ) thrust was on unity of the nation and on the narrowing down of religious practices.
AG quotes Munshi : "Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation"
AG quotes Munshi - We want to divorce religion from personal law. We are in a stage where we must unify our nation without interfering with religious practice. Religion must be restricted to spheres which are religious.
AG : Munshi says we should put a foot down on all practises which will bring down the country and seeks to narrow down religious practices and seeks for a uniform civil code.
AG says Munshi's remarks have been quoted by CJ Kehar in Shayra Bano case.
AG : The entire law on essential religious practice was consolidated in the Sabarimala judgment. Before that, the need for bifurcating this was first spoken by K M munshin in constitutent assembly debates. This has beeen quoted in the Shayra Bano case.
AG quotes from the judgment: "There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which in not considered a religious activity. Every mundane or human activity was not intended to be protected by Constitution under the guise of religion"
AG : The Shirur mutt judgement was read as if dress and food would automatically qualify as Essential Religious Practice. But this has to be understood in the light of the subsequent judgment which says a pragmatic approach should be taken
AG quotes from the above judgment to say that issues like dress or food and mundane activities cannot be regarded as part of religious practices and a pragmatic approach should be taken.
AG refers to "A.S. Narayana Deekshitulu Etc vs State Of Andhra Pradesh"
"..which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress". AG continues - The other side read out this to argue food and dress can also form part of religion. But kindly see how this has been clarified
AG refers to Shirur Mutt case - This sentence was read out by other side to say dress also forms part of religion.
"A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship..
AG: In the context of hijab, I wanted to bring to the notice, that Supreme Court has said why food and dress should not be considered as Essential Religious Practices.
AG refers to the Sri Venkataramana Devaruand case, and says there the SC did not accept the plea that Gowda Saraswat Brahmins can claim a right that other communities cannot be allowed access in Moolky temple.
AG : Lastly, it is held that the foundation of the religion should be that practise.
AG : There are three test to determine if a practice is essential religious practice :
1. Is this part of core belief?
2. Is this practice fundamental to that religion?
3. If that practice is not followed, will the religion cease to exist?
AG quotes from the above judgment : "If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part".
AG quotes from the above judgment : "Test to determine whether a part or practice is essential to the religion is to find out whether the nature of religion will be changed without that part or practice"
AG quotes from the above judgment : "Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief".
AG : "The protection under Articles 25 & 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential & integral part of practice . The latter not protected"
AG : The plea of the petitioners in that case (Javed v State of Haryana) was that Islam allows more than one marriage. So the argument was the disqualification for more than marrying once impacts Article 25.
AG refers to Javed v State of Haryana (2003) 8 SCC 399 where a Haryana law prohibiting people with more than one marriage were prohibited from contesting elections.
AG quotes from Dargah committee judgment : "Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised"
AG quotes from Dargah committee judgment "Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.
AG : "..regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices"
AG says State relying on this statement from the judgment : Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and Observe that in order that the practices in question should be treated as a part of religion they must be...
AG refers to Ajmer Dargah case AIR 1961 SC 1402 - this was a case where an Act taking away the rights of sufis from collections in Dargah was under challenge.
AG : The practice must be essential to religion.
CJ : That is the crux?
AG : That is the crux. There are some tests laid down.
AG : In the first judgment, the word used was "essentially religious" and when it came to Sabarimala it became "essential to religion". I will show four judgments, from Shirur Mutt to Sabarimala case.
AG points out that the Supreme Court has said in Shirur Mutt case that it was difficult to give a precise definition to "religion".
Justice Dixit : Our Constitution did not enact what Karl Marx has said, that "religion is the opium of the masses".
AG: There was a telling statement made by Dr Ambedkar in the assembly debates that let us keep the religious instruction outside educational institutions.
Justice Dixit : Secularism which the makers of our Constitution is not what akin to what American Constitution envisages. Our secularism oscillates between "sarva dharma sama bhava" and "dharma nirapekshatha". It is not a war between the Church and the State.
AG: They reached to consensus that we will control vide public order, morality and health.
AG : Lot of apprehensions we exhibited by number of members during the constituent assembly debates. K M Munishi and other expresses, if we are to adopt as secular state, why have religion as right. That may result in some religions placing their hegemony over others
AG refers to Dr Ambedkar's debates on Article 28. Quotes Ambedkar in saying religions teach they are only path of salvation and others are false and this can lead to social disharmony. Quotes Ambedkar saying Islam and Christianity teaches that only they are true
CJ: Conscience and religion are two different aspects.
Justice Dixit: Different but mutually existing also.
Justice Dixit points out in the Constituent Assembly, there was a debate on whether to include "conscience" in Article 25. Dr Ambedkar suggested it to be included, saying even people who do not believe in God are also entitled to Art 25 protection.
AG : Question of ERP would possible not come within the concept of Freedom of Conscience.
Justice J M Khazi : I want to know whether Essential Religious Practice is applicable to freedom of conscience.
AG refers to Constituent Assembly Debates.
AG: How you mainfest your consciousness amounts to religious practise.
AG : If we had decided the hijab cannot be worn, it would have been seriously challenged on the ground that State has interfered in a religious matter.
AG : If we had decided the #hijab cannot be worn, it would have been seriously challenged on the ground that State has interfered in a religious matter.
AG : In Feb 5 order, we do not decide anything. I say so because, from Shirur mutt case it has evolved, State unless it is a secular activity should not involve in religious practises.
AG : In this case (Udupi Pre-University College) has take a stand that we will not allow wearing of hijab in the institution. So this issue might have to be gone into by the Court.
AG: If lordships are to decide that wearing of hijab does not fall under Article 25, then it would be different for students and institution. The entire question revolves around whether wearing of hijab falls under Article 25.
AG : The second issue (ERP) might be necessary because of this. Let us say this institution is before your lordships. The question that would be posed can you prevent someone from entering the institution for wearing hijab.
CJ : These (CDC) are not statutory bodies they are created by circulars. Since they are not statutory bodies can they be regulated b court order? Do you understand or not? Because stand of state is you are not interfering whether to allow wearing hijab or not.
CJ : Your stand is state is not interfering, it has left to institution whether to permit hijab or not?
AG: Yes milords
CJ : So whether are we required to go into this constitutional questions or not? Essential religious practice and all?
AG : It may become necessary....
AG: My answer is that Order , it gives complete autonomy to institution to decide uniform.
Whether students be allowed to wear dress or apparel which could be symbol of religion, the stand of the state is.. element of introducing religious dress should not be there in uniform
CJ : It is argued that they may be permitted to wear the same colour headdress as permitted in uniform prescribed by the college. We want to know the stand of the state? It was argued by Mr Hedge, suppose if they are wearing duppata which is part of uniform, can it be allowed?
AG : If the institutions are to permit, we would possibly take a decision as and when the issue arises...
CJ : No, no, you have to take a stand.
AG: On the second issue, we have said Hijab is not essential.
Chief Justice: What is the import of this..saying that uniform is to be followed? What is your stand that whether hijab can be permitted in institutions or not?
AG : The operative portion of GO leaves it to institutions.
CJ : If institutions permit hijab, you have objections?
Advocate General starts -
CJ : You have argued that the Govt Order is innocuous and the State Govt has not banned Hijab and has not put any restriction on Hijab and that GO merely says students should wear prescribed uniform. But now come to para 19, 20 of your objections
Karnataka High Court Resumes Hearing
Senior Advocate Jayna Kothari makes a mention on behalf of an intervenor.
Chief Justice says right now Court will not hear any intervenor and will seek their assistance, if need felt, after the respondents' arguments.