On Wednesday, the Supreme Court while hearing the case challenging the hijab ban in Karnataka government educational institutions remarked that even the right to undress would qualify as a fundamental right under article 19 of the Indian Constitution. “If the 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”, the Court remarked.
According to the reports, this is after Advocate Devadatt Kamat appearing for the petitioner Ayeshat Shifa contended that wearing hijab should be considered as the right to dress under article 19 of the Constitution of India. The Court bench led by Justice Hemant Gupta also pondered whether it was fair to stretch Article 19 to illogical ends.
Justice Gupta: 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!
— Bar & Bench (@barandbench) September 7, 2022
Kamath: I am not here to make cliche arguments milord. I am proving a point #hijabhearing
“We cannot take this to illogical ends. If you say the right to dress is a fundamental right then the right to undress also becomes a fundamental right. No one is denying the right to dress”, the Court reiterated. Meanwhile, Kamat pressed that the state can’t restrict the girls from wearing an additional dress (hijab) on the basis of Article 19 if they want to.
However, the Court ruled that the state was not prohibiting the Muslim women from wearing the hijab, but the schools are, inside their respective premises because they have uniform dress code rules. Last Monday, the Supreme Court issued a notice to the State of Karnataka in a batch of petitions contesting the Karnataka High Court decision that essentially upheld the prohibition on wearing hijab in government schools and universities.
On March 15, the Karnataka High Court upheld a Karnataka government order (GO) effectively authorizing college development committees of government institutions in the State to prohibit Muslim girl students from wearing hijab (head coverings) on campus. “Hijab is not a part of essential religious practices of Islam. The requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a). The government has the power to pass the GO”, a three-judge bench led by Justices Ritu Raj Awasthi, Krishna S Dixit and JM Khazi had ruled.
Meanwhile, one of the petitions filed by Muslim students after being denied permission to attend courses due to their hijab use contended that the High Court had failed to take cognizance of the fact that the right to wear Hijab comes under the ambit of the right to privacy under Article 21 of the Constitution of India.
Advocate Kamat reiterated the contention on September 7 and stated that the state had failed to provide reasonable accommodation to a student exercising her right under Articles 19 and 21 of the Constitution. He also pointed to a woman lawyer wearing Hijab in the Courtroom and argued that was her act violating the decorum of the court.
He also cited the examples of Kendriya Vidyalayas looked after by the Central government which allow Muslim girls to wear hijab. “Kendriya Vidyalayas, under the Central government allow Hijab. For the Kendra Vidyalayas head scarf with matching colour of uniform for girls is allowed. It makes it a reasonable accommodation for Muslim girls to wear the head scarf in schools”, he argued.
Kamat also said that religious identity symbols of other religions were allowed in the schools but not Hijab. To this, Justice Gupta said that religious identity symbols like Sandhya Vandanam, Rudraksha or even cross do not violate the discipline of the school. “Rudraksh and cross is inside shirt. No one is removing your shirt to find it out”, the Court added.
The Court further maintained that it was not fair to stretch Article 19 of the Indian Constitution to illogical ends.
