Dhavan : To summarize, this is not a "Yes" "No" issue. What are the obligations on the authorities concerned to bring about a measure of inclusiveness and to apply the least restrictive approach.
Dhavan referring to grounds raised in petition : Proportionality means taking the least restrictive alternative - Cites Modern Dental College case-
Dhavan : As on 01.07.2021, no uniform was prescribed for PUCs. Then there was a campaign against hijab. This is what this case is all about. The campaign "Hijab Must Go Come What May".
Dhavan : What is required is an inclusive policy after due discussion. None of this has taken place as far as Karnataka is concerned.
Dhavan refers to a Kenyan decision.
Dhavan : What is important in cases like this is a certain degree of sensitivity, without which one can't find a common ground.
Dhavan : The test is one of proportionality. The test is to take the least invasive approach. One of the suggestion made by pupils was that they will wear the headscarf with the same colour as the uniform.
Dhavan : When you say you can't allow burqa in school, i it is reasonable, becasue you want to see the face. But what reasonable objection can be there to the headscarf?
Dhavan : The rationale in the Kerala case given by the Board was that to prevent malpractices in the AIPMT exam. But here, in Karnataka case, there is no rationale given.
Dhavan : The fact that large number of millions of women are wearing hijab bonafidely has been ignored. Hijab across the board is permitted in public places. So what is the basis to say hijab can't be in class room and is opposed to public order.
Dhavan says the Kerala HC has also referred to the references cited by the Karnataka HC judgment.
Justice Gupta : You want us not to do what the Kerala HC has done.
Dhavan : I agree. But if we were to interpret the text, the answer of the text is that it is farz. But I don't go that far. If it is a ritual that is prevalant, and is bona fide, your lordships will allow.
Justice Gupta : Regardless of the mandate of the holy book?
Dhavan : Provided it is not against the holy book. To that extent enquiry can be there.
Justice Gupta : What is the basis of saying it (hijab) is a farz?
Dhavan : They (Kerala HC) have analysed from (gives the paragraphs of the judgment).