Kar AG : It does not mean fundamental right has been taken away. It can be restricted. Constitution itself provides it can be restricted.
Justice Dhulia : But only on grounds of public order, morality or health. Under which head?
Kar AG : Right to expression is bilateral. You are expressing to someone. Wearing a hijab, what are you expressing, there is no pleading.
Justice Dhulia : Sibal had raised this point, the girl can express herself in hijab in a mall, but when she enters the school, she can't.
Kar AG : Right cannot be absolute. School has regulations which say it cannot be done.
Justice Gupta : 19(1)(a) uses two words, speech and expression. Are they interrelated?
Kar AG : It can be independent.
Kar AG : Transgender persons wanted to dress in a particular way to express themselves and in that context dress was held to be 19(1)(a) right. But there is no judgment on right to wear dress as an expression in a classroom in defiance of uniform rule.
Kar AG : The alternate submission is, Article 19(a), majority of judgmet is on the line of communication. Concept of dress came from NALSA judgment. What was the context of NALSA? It was transgender rights.
Justice Gupta : Article 51A as such is not enforceable, but you are brining in as part of the Act.
Kar AG : In fact there is a lot of thought going on now how to make fundamental duties part of governance.
Kar AG : PUC is age between 15-17..it is a very impressionable age. The requirement of discipline is much more necessary in that age. Once we pass out of PUC, we go to degree colleges, there is no uniform.
Kar AG : The idea of uniform, it brings all students in all plane, irrespective of economic background. Second objective, is what Article 51A(j) says, you rise above your religious identity to become part of one group.
Kar AG : The words used in circular is, if there is no uniform prescribed, wear something which goes along with unity and equality and which does not affect law and order. Perhaps the draftsman intended, please wear something dignified.
Kar AG : Law and order means, please don't dress scantily.
Justice Dhulia : Wearing of headscarf, does it go against unity and equality?
Kar AG :Hijab does not come here.
Kar AG : They have not challenged Rule 11. It is the staturoy power for the school to prescribe the dress. Not the circular. Rule is the source of power.
Justice Gupta : Argument of Prashant Bhushan is there should be no uniform.
Justice Dhulia : It is pre-university. Some schools don't have uniform. And the circular, it uses the word "unity and equality". What is this?
Kar AG : We provide free uniform...
J Dhulia : We are not on that.
AG : I am explaining the govt order.
Justice Dhulia : Another question, the Act is for better administration of institutions. Now you are putting restriction, such restriction can only done be by "law". 19(2) can only be by law. Is the circular a "law"?
Kar AG : The restriction is by Rule 11. That is the only Rule
Justice Gupta : Actually there is a difference of opinon amongst lawyers. Shoeb Alam said it is not a law. Dushyant Dave said it can be a law under Article 13.