[Hijab case] If you say right to dress is fundamental right then right to undress also becomes fundamental right: Supreme Court to petitioner

In the case challenging the hijab ban in Karnataka government educational institutions, the Supreme Court on Wednesday 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.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 hearing will resume at 11.30 am tomorrow..Background.The Supreme Court had last week issued notice to the State of 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 Karnataka government order (GO) effectively empowering college development committees of government colleges in the State to ban the wearing of hijab (headscarves) 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.A three-judge Bench of then Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held that:- Hijab is not a part of essential religious practices of Islam;- 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; no case is made out for its invalidation.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..Arguments todaySenior Advocate Devadatt Kamat, appearing for Ayeshat Shifa, said that this was a case of State failing to provide reasonable accommodation to a student exercise her right under Articles 19 and 21. "This case involved primarily a basic question as to whether the state has failed in its obligation to provide for reasonable accommodation for the exercise of a student citizens right under Article 19, 21," he said.He maintained that he was not challenging prescription of uniform."The bench had remarked if someone can turn up in jeans in name of fundamental rights. This is not about challenge to uniform," Kamat argued."What else the challenge is to," Justice Gupta asked. "Hijab is not a burqa or a jilbab. This is not that case....The principle of reasonable accommodation has been accepted by the Supreme Court in numerous judgments," Kamat replied.He then proceeded to cite Supreme Court judgments in this regard."In Bijoy Emmanuel case the argument was rejected that students should leave religion at home and attend school. That was about students not wanting to sing the national anthem. That was on a much larger footing," Kamat contended."Yes the national anthem case," Justice Gupta said."If the argument of the other side is to be accepted then the students would have been shunted out. This court went on to examine this in a school environment," Kamat said."There was no insult to national anthem since they stood up.. this case is on a different footing," Justice Dhulia remarked..Kamath now pointed to a lady lawyer wearing a hijab in the court room:"Please see this milord. She is wearing a headscarf of the colour of the uniform. Is this violating the decorum of this courtroom," Kamat asked."You have put up a exhibit on her," Justice Gupta said."I had taken her permission prior to the hearing milord," Kamat responded.He then argued how Kendriya Vidyalayas under the Central government permit 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 a reasonable accommodation for Muslim girls to wear head scarf in schools milord. This was placed before the High Court. The High Court says Centre is different than the State," Kamat submitted..He also cited a judgment of the Constitutional court of South Africa which had allowed a Hindu girl to wear a nose ring. "The school took the same stand that if it is allowed then anybody and everyone will wear fancy dress and thus a parade of horribles. the constitutional court said 'NO' (to the school). The court said that nose ring may not be religious central but it was part of the identity of the girl and so it was allowed," Kamat argued.Kamat then proceeded to read out excerpts from the judgment."There is a lot of emphasis on dignity in the South African court judgment," Justice Dhulia remarked. "Yes, which our (Supreme) Court has also emphasized in Puttuswamy and others," Kamat pointed out.."I do not think no other country has as much diversity like our country. All other countries have a uniform law for its citizens," Justice Dhulia weighed in."Agreed milord," Kamat said. "Now forget about South Africa and come to India," Justice Gupta stated."I cite this judgment as to how this case is encapsulated in our jurisprudence," Kamat said."Who said 'parade of horribles' in the South African case," Justice Gupta queried."This was the State's argument. This is similar to saying like students will wear minis, midis etc," Kamat replied.He then cited cases from United States of America and Canada."How do we compare US, Canada to our country. We are very conservative," the bench said."But good things are always welcome," Kamat responded."When these courts pass judgment it is dependent on their social and cultural context," Justice Gupta opined."Constitutional standpoint is all religions are manifestation of same god," Kamat said. "Do all religions accept this? is this accepted by all religions," asked Justice Gupta."This was in Aruna Roy case ...Secularism does not mean that students of one community will not display their religious symbol. Please refer to the Government Order (GO)," Kamat submitted.Kamat also pointed out the argument of Karnataka Advocate General (AG) Prabhuling Navadgi."Karnataka Advocate General (AG) said the GO was an innocuous GO. It was startling coming from him after it was argued for 15 days in the High Court," Kamat stated."AG said GO does not say due to which issues will students wear uniforms," Justice Gupta said."That is not true. Here the college development committee says Hijab is not an essential part of Islam and thus need not be followed," Kamat responded."But it is only them who want to wear headscarves to school. All others are wearing uniform..reading of GO may not be correct," the bench stated.Kamat maintained how each and every student, particularly in South India wears religious symbols to schools."Every South Indian when they go to school shows some religious identity like Sandhya Vandanam, Rudraksh or even cross," Kamat said."But rudraksh and cross is inside shirt. No one is removing your shirt to find it out. It is not violating the discipline of the school," Justice Gupta opined.."If we make these reasonable accommodations are made only then we can achieve positive secularism," was Kamat's response.The argument then veered to a discussion on secularism and the insertion of the same in the Preamble. "The word secularism was not there in original constitution Kamath," Justice Gupta stated."In spirit it was there. it permeates through the entire document," Kamat said."We are on the word. I don't know if it was added as a political statement though it was always there (in spirit)," Justice Gupta said..Kamat said that the GO is violative of Article 14 as it specifically targets visible manifestation of one religious belief.He also relied on Article 19 and the 2014 NALSA judgment of the top courtto claim that right to dress is part of freedom of expression"It has been held that right to freedom of expression includes dress. It was held dress is a part of Article 19(1)(a)...I am not saying I wont wear the uniform. But if I wear a headscarf along with the uniform, will it violate the dress code," he demanded."Show us where dress is held to be a part of Article 19(1)(a)," asked Justice Gupta. Kamat then proceeded to cite the relevant paragraph from the NALSA judgment of the Court."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 asked."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 it 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."Yes but on the basis of constitutional morality, equality...." Kamat tried to continue."Constitutional morality, equality all good," said Justice Gupta."I am on the High Court order," Kamat said."We are not going by High Court," Justice Gupta said.."How the High Court as a judicial body can say all this? High Court says hijab is against constitutional morality. With due respect, it is her choice. This violates decisional autonomy and growth choice jurisprudence developed by this court under Article 21," said Kamat.He also took objection to the comparison High Court had drawn between prisoners wearing uniform."High Court gave the example of prisons and says prisoners have no fundamental rights..I was amazed. High Court says once you go to school you are in the "custody" of teachers," Kamat pointed out."This comparison is different... when you follow uniform there is a propriety to this. This is only mode of expression by the High Court and you may not like it. But it is not comparing students to undertrial prisoners," Justice Gupta said.The hearing will continue tomorrow..Read more on day 1 hearing here..Read live coverage of today's hearing below.