Right To Dress Includes Right To Undress Too?Justice Hemant Gupta Asks In Hijab Case Hearing

The Supreme Court bench comprising Justice Hemant Gupta and Justice Sudhanshu Dhulia, on Wednesday, continued hearing the batch of petitions challenging the Karnataka High Court's judgment which upheld the ban on wearing of Hijab by Muslim girl students in some schools and colleges in the State. In today's hearings, on submissions of Senior Advocate Devadatt Kamat, appearing for the petitioner in the lead petition, Aishat Shifa v. State of Karnataka, Justice Hemant Gupta stated that his submission of freedom of expression including the freedom to dress and adding headscarf to uniform was "taking it to illogical ends". Justice Gupta then enquired if the right to dress would also include right to undressing. 

Senior Advocate Kamat had argued that Article 19 of the Indian Constitution, which provides citizens with the right to freedom of expression also included the freedom to dress. He added that there undoubtedly had to be reasonable restrictions on this right. Thus, the petitioner was not opposed to wearing the uniform, rather she just wished to wear the uniform with the headscarf. Justice Gupta was quick to retort this line of argumentation and said–

"You can't take it to illogical ends. Right to dress will include right to undress also?"

To this, Sr. Adv. Kamat stated that–

"Nobody is undressing in a school. Question is wearing of this additional dress as part of Article 19, can it be restricted?"

In the last hearing on the matter, on Monday, Justice Gupta had asked if girls could be permitted to come in "middies, minis, skirts" as per their choice. 

Today, the court also discussed the religious significance of various objects and whether wearing the same could infringe discipline of an educational institute. In this context, Sr. Adv. Kamat referred to the South African judgment of KwaZulu-Natal and Others v Pillay, which allowed a Tamil Hindu student to wear nose ring in school. Here Justice Gupta remarked that a nose pin was not religious, a mangalsutra was. He stated that women all over the world wore earrings, but it is did not constitute a religious practice.

While continuing the discussion, Sr. Adv. Kamat differentiated between positive and negative secularism and stated that the Government Order banning Hijabs in educational institutions was against positive secularism. He stated that–

"The mighty State is telling that Hijab is no part of Article 25 and asks School Committees to decide...the Government Order is against positive secularism. It is targeting one community."

Justice Gupta disagreed with this interpretation of the Government Order and stated that–

"Your reading of the Government Order may not be correct, because it is only one community which wants to come in religious dress."

Sr. Adv. Kamat pointed out that it was not just one community as students of other religions also wear Namam, Rudraksha, Cross etc. However, Justice Gupta remained unconvinced and stated–

"Rudraksh or Cross is different. They are worn inside dress, not visible to others. There is no violation of discipline."

Sr. Adv. Kamat submitted that the question was about reasonable accommodation and not about whether an item was visible or not.

In the last hearing on the matter, Justice Hemant Gupta had orally remarked that a "pagdi" was not equivalent to a "hijab" and the two could not be compared.