If right to dress is fundamental right, right to undress also becomes one: SC in hijab ban case

During the hearing of the case relating to the challenge to the ban on wearing of the hijab (headscarf) in Karnataka government educational institutions on Wednesday, the Supreme Court told the petitioners 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 headed by Justice Hemant Gupta, therefore, 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, legal news website Bar & Bench reported.

This was after Kamat cited the 2014 NALSA judgment of the Supreme Court to contend that right to dress is recognised as a fundamental right under Article 19(1)(a).

"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," Justice Gupta said.

"I am not here to make cliche arguments milord. I am proving a point. No one is undressing in school milord," Kamat responded.

"No one is denying right to dress," Justice Gupta maintained.

"Wearing this additional dress (hijab), can it be restricted on the basis of Article 19," asked Kamat.

He maintained that hijab does not create any public order issue and does not go against any morality.

"No one is forcing her to wear it, but if the girl choses to wear it can the the State prohibit this," Kamat asked.

"No one is prohibiting her to wear the hijab... but only in school," Justice Gupta said.

The Supreme Court had last week issued notice to Karnataka in a batch of appeals challenging a Karnataka High Court verdict that effectively upheld the ban on wearing hijab in government schools and colleges.

The Karnataka High Court had on March 15 upheld a state government order effectively empowering college development committees of government colleges in the state to ban the wearing of hijab by Muslim girl students in college campus.

The petitioners – Muslim girl students from various colleges in Karnataka –had approached the High Court after they were denied permission to attend classes on account of wearing hijab.

One of the pleas before the top court argued that the High Court "failed to note that the right to wear a Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution."

It also contended that the High Court failed to take note 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.

With regard to uniform, the plea said that the Karnataka Education Act, 1983, and the Rules made under the same, do not provide for any mandatory uniform to be worn by students.

The hearing will continue on Thursday.