Kar AG : When this proposition was brought to me by my colleagues, my reaction was also like your lordships. But when I thought deeply...
Justice Dhulia : We will also think
Kar AG : I need not justify my action going to public order. Because the intention of my legislation is not to curb freedom of speech, my intention is to bring discipline. Every time we go back to 19(2), it will be practically impossible.
Justice Gupta : Your argument is you are not prohibiting anything and only regulating uniform.
Kar AG : Regulating.
Kar AG : It does look like a proposition which is far fetched..But I will demonstrate.. if an innocous situation of a student not following uniform, forget this controversy, and if he comes to court saying 19(1)(a) right violated, and the Court asks school to justify under 19(2)
Kar AG : Unless the legislations directly curb the freedom of speech, those legislations must be tested under 19(2). However, if the dominant object of the Act is something is, and incidentally..
Justice Dhulia : Incidentally what?
Kar AG : Incidentally if it affects 19 right.
Justice Dhulia : I will never understand this.
Kar AG refers to Express Newspapers case - if the legislation does not directly deal with Art 19, it has to be seen if it abridges the rights under Art 19.
Justice Dhulia : How does this help you?
Justice Dhulia : This was minority view?
Kar AG : It was Justice Fazal Ali's minority view in AK Gopalan.
Justice Dhulia : What is the law now?
Kar AG cites the quote from Bachan Singh judgment which is Justice Fazal Ali's opinon in AK Gopalan case - "only those laws are required to be tested on the anvil of Article 19 which directly restrict any of the rights guaranteed in Article 19(1)...."
Justice Gupta : Bacchan Singh case is the death sentence case?
Kar AG : Yes, the argument was that if death sentence is imposed all fundamental rights are taken away. The Court said, see the dominant object of Act
Kar AG : If in a class room a student does not wear uniform and the teacher asks him to go back, can he come to Court and say there is no public order or national security ground to impose restrictions under 19(2).
AG : Is it a remote effect or proximate effect? The Karnataka Education Act is intended to administration of educational institution. It is our object to bring in discipline. And incidentally, if there is a violation of Article 19, it cannot be invalidated.