Kar AG : The law laid down in Bacchan Singh case is that if a legislation is directed against a particular subject, and it incidentally entrenches upon another right, it cannot be invalidated on that ground.
Justice Gupta : But the effect has to be seen.
Kar AG : The only Rule by which they are being prevented from wearing hijab is Rule 11, which prescribes uniform. Rule 11 is a legislation which does not deal with any of the rights under Article 19.
Kar AG : They made a statement that right to wear hijab is part of fundamental right to freedom of expression. My submission is two-fold. First, what requires to be examined, was there any restriction on wearing hijab in the impugned actions.
Kar AG on Article 19 right : If it is held that there is no fundamental right under Article 25, what remains actually before the Court is the reasonableness of the restriction of uniform in school.
Kar AG : Even in Shah Bano case, Abdullah Yusuf Ali's translation was used...even before High Court, everybody said this book can be used.
Kar AG refers to Justice Khehar's observation in Shayra Bano case which states that Abdullah Yusuf Ali's translation is being used with the approval of all parties.
Kar AG : They cited a translation of Quran which was downloaded from a website. At that time, the Court wanted to know which version to rely upon. Then I referred to Shah Bano and Shayra Bano cases and cited the version referred in those judgments with the approval of all.
Kar AG : I must say, there was some hesitation among us whether to argue the essential religious practice. In fact I had instructed our law officers not to carry the holy book to court, as it is a revered book.
Kar AG : Before the High Court, I am saying this with full responsibility, every writ petition did not travel beyond four pages, and the essential religious practice was cited in one para with two verses. And the prayer was to declare it as essential practice.
Justice Dhulia (laughing) : I don't know why that kind of prayer was mind..
Kar AG : Once such a declaration is made, it will bind every member of Islam community. They should have been more responsible.
Justice Dhulia : The State could have said don't take to essential religious practice.
Kar AG : It was our argument.
Justice Dhulia : No. Your argument was it was not an essential religious practice. You should have also taken the responsibility.
Kar AG : If left alone, everything which stems out of religion will get protection under Article 25 and it will lead to a situation which is extremely difficult.