Justice Dhulia : But the petitioner's case was it was essential. Look at their prayer, they were seeking a declaration that it is an essential practice.
Dave : For some people it is an essential practice, some people are more religious, some are more tolerant..
Justice Gupta : The argument of AG was it was not compulsory.
Dave : Some people may wear it. Some people are more religious. It is an individual choice. That is why essential religious practice test was rejected long back. It was brought by backdoor.
Dave : The problem is the State is wishing it (guidelines saying no uniform). It is not for fun that you have issued it.
Justice Dhulia : It is issued under Rule 11. Both (circular of Feb 5 and the earlier guideline) have Rule 11 as source.
Justice Gupta : We want to know as a question of fact whether students were wearing uniform?
J Dhulia : Issue is not uniform or whether students were wearing it. Issue is whether you are permitting hijab or not.
J Gupta : Mr.Dave is it your stand there was no uniform before 2021-22
Dave : Our case is that hijab was never objected to..our case is it is a voluntary practice..what other side is arguing..
J Gupta : We are on a different issue..on uniform.
Dave : Uniform was not compulsory.
Justice Dhulia : The 5th GO says if there is no uniform prescribed, it says dress going along with unity and equality..meaning no headscarf.
Bench asks Karnataka Govt about the earlier guidelines saying no uniform.
Justice Gupta asks ASG Nataraj : We want to have a clarity.
ASG : I will say legal angle. The guidelines do not confer any right. They do not affect statutory instructions.
Dave : The earlier circular (of no uniform) are guidelines by department of education for 2021-2022. There is no question of subsequent circular superseding. It does not say it is superseding.
Dave : This buttresses my argument that there was no cause for the Feb 5 Circular..
Dave : The present circular does not advert to these guidelines (which say uniform is not mandatory).
Justice Dhulia : This circular of Feb 5, this say uniform can be prescribed. And there was an earlier circular saying no uniform? So subsequently GO will supersede?
Dave : It is not for learned Solicitor General and learned Advocate General to say it(the circular saying uniform is not compulsory) is an unsubstantiated document.Dave recounting from his days representing state govt : We could not take liberties with the Court, in many matters we conceded when we there was a case. I respectfully say it is not right for law officers to say this doc is unsubstantiated when it is a govt document.
Dave : Same thing about the PFI..
Dave : There were no pleadings about the Popular Front of India
Dave : The guideline of 2021 says uniform is not compulsory. It was part of the writ document before the HC. Solicitor General said it was an unsubstantiated document. But it is substantiated by their own submission before the High Court. How can you disown your own document?