NEW DELHI: The hearing of pleas challenging the Karnataka High Court’s verdict on refusing to lift the ban on hijab in state’s educational institutions took an interesting turn in the Supreme Court on Wednesday when Justice Hemant Gupta, the presiding judge of the bench, enquired if the right to dress as a fundamental right would also include the right to undress.
“You can’t take it to illogical ends. Will the right to dress also mean the right to undress?,” the judge asked, questioning senior advocate Devdat Kamat’s submissions that the fundamental right to freedom of speech and expression includes the right to dress since the word expression has a “wide import”.
“Nobody is undressing in school. Can wearing of additional dress, under Article 19, be restricted? If one wears hijab, whose morality is disturbed? The grounds of reasonable restriction related to public order and morality under Article 19 (2) can’t apply to hijab situation,” Kamat added. Responding to Kamat’s argument, Justice Gupta said, “No one is prohibiting you from wearing hijab. You can wear it wherever you want to. The restriction is in educational institutions.”
The bench also comprising Justice Sudhanshu Dhulia said only one community wanted to come in religious dresses while other students followed the uniform prescribed. “Your reading of Government Order (dated February 5) may not be correct because it’s only one community which wants to come in religious dress,” Justice Gupta said on Kamat’s submission that the GO which did not allow students to wear the hijab to educational institutions was targeting one community.
Responding to pleas that assailed Karnataka HC’s ruling that hijab was not part of essential religious practice, the bench also remarked that although the words “secular” and “socialist” were added in the Constitution in 1976, secularism and socialism were always part of the Constitution.
In an attempt to persuade the bench to refer the matter to a constitution bench, Kamat also submitted that the GO specifically targeted visible manifestations of one particular community. He also highlighted that students from other religions were allowed to wear religious symbols such as ‘rudraksha’, ‘cross’ and ‘kadha’ to school.
“Nobody is forcing a girl to wear a hijab but if a girl exercises her right under the Constitution, can the state prohibit it? By actually saying if you come to school wearing a hijab we will not allow you, the state violates Article 19,” Kamat contended.
Referring to rules at Kendriya Vidyalayas which allowed girls to wear headscarves matching the colour of the uniform, Kamat said the rule made for reasonable accommodation for Muslim girls to wear headscarves in schools.