The Supreme Court on Wednesday told the petitioners in the case challenging the hijab ban in Karnataka government educational institutions, that if right to dress is claimed as an absolute fundamental right under Article 19 of the Constitution, then right to undress would also qualify as one.
A bench comprising of Justice Hemant Gupta and Justice Sudhanshu Dhulia continued hearing the batch of petitions challenging the order by the Karnataka High Court which upheld the ban on wearing of Hijab by Muslim girl.
Senior Advocate Devadatt Kamat ,who appeared for Petitioners said that the order was not “innocuous”, instead violates fundamental rights of the students under Article 19, 21 and 25 of the Constitution.
He further contended that the GO said prohibiting Hijab will not violate the right to practice religion and then left the matter to be decided by the College Development Committees. He questioned that if the state already gives a hint, the colleges will have no option but to ban hijab .
The bench asked the petitioner’s counsel Senior Advocate Devadatt Kamat whether the right to dress as a facet of Article 19 can be stretched to illogical ends.
The bench posed this question after Kamat cited the NALSA judgment of the Supreme Court(2014) to say that right to dress is recognized as a fundamental right under Article 19(1)(a).
Justice Gupta questioned “We cannot take this to illogical ends.. if you say right to dress is a fundamental right then right to undress also becomes a fundamental right.
Advocate Kamat replied”I am not here to make cliche arguments milord. I am proving a point. No one is undressing in school milord”.
Justice Gupta replied back by saying that the right to dress in not denied“
Advocate Kamat then said to the Court “positive Secularism” is practiced in India and therefore the government must exercise “reasonable accommodation” and allow the Petitioner to wear headscarf in addition to uniform.
Kamat questioned the bench “Wearing this additional dress (hijab), can it be restricted on the basis of Article 19? He also asked “No one is forcing her to wear it, but if the girl choses to wear it can the the State prohibit this.”
He maintained that hijab does not create any public order issue and does not go against any morality.
The bench said that “No one is prohibiting her to wear the hijab… but only in school, she has to be wearing what the committee decides.
The hearing will resume at 11.30 am tomorrow.