Will right to dress also mean right to undress, asks SC in Hijab case after lawyer says Article 19 includes right to dress

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The Supreme Court on Wednesday asked whether right to dress will also mean right to undress after a submission was made in the Karnataka Hijab case that right to freedom of expression under Article 19 of the Constitution includes choice of dress.

The poser by the apex court came during the hearing of arguments by the lawyer for one of the petitioners challenging the Karnataka High Court verdict declining to lift the state government's ban on Hijab in educational institutions of the state.

"You cannot take it to an illogical end," a bench of Justices Hemant Gupta and Sudhanshu Dhulia said when a previous judgement of the apex court was cited by senior advocate Devadatt Kamat and an argument raised regarding Article 19 (1)(a) of the Constitution and the freedom to dress.

When the bench asked "Will right to dress mean right to undress also?," Kamat responded to say "nobody is undressing in school.

Kamat referred to the Karnataka government's order of February 5, 2022, by which it had banned wearing clothes that disturb equality, integrity, and public order in schools and colleges and claimed it is targeting only one community. The order was challenged in the high court by some Muslim girl students.

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"It may not be right. Because one community wants to come with a headscarf". another community is following the dress code," the bench observed.
Kamat, who also referred to "positive secularism", said the state must exercise reasonable accommodation.

"Your lordships have accepted the concept of positive secularism."

Referring to a previous judgement of the apex court, Kamat argued that secularism does not mean that students of only one faith will not display their religious identity.

The court also made it clear that the question in the Karnataka Hijab ban matter is only about the restriction in schools as nobody is prohibited from wearing it anywhere else they want.

The bench was told that the matter be referred to a five-judge constitution bench.

Kamat argued that if a girl, in the exercise of her rights under Articles 19, 21, or 25 of the Constitution, decides to wear a Hijab, then can the State put a prohibition that will violate her rights.

The bench orally observed, "The question is nobody is prohibiting you from wearing Hijab. You can wear it wherever you want. The only restriction is in the school. We are only concerned with that question."

At the outset, Kamat said his endeavour is to persuade the bench to consider reference of this matter under Article 145 (3) of the Constitution.

Article 145 (3) says the minimum number of judges, who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference under Article 143, shall be five.

The senior advocate argued that the bench has to be satisfied that this is a case that requires a reference under Article 145 (3).

"I endeavour to persuade your lordships to take this course of action," he said, adding this is not a matter which is simply related to a violation of a statute, or a rule.

"This case involves primarily a basic question as to whether the State has failed in its obligation to provide for reasonable accommodation, which is a Constitutional principle adopted by your lordships, for the exercise of a citizens' rights under Articles 19, 21, and 25," Kamat said, adding that the petitioner is not challenging the prescription of uniform in the school.

While Article 19 deals with the protection of certain rights regarding freedom of speech etc, Article 21 pertains to the protection of life and personal liberty. Article 25 of the Constitution deals with freedom of conscience and free profession, practice, and propagation of religion.

During the arguments, Kamat referred to a circular of the Kendriya Vidyalaya and said it prescribes a uniform and makes a reasonable accommodation for Muslim girls to wear a headscarf.

He also referred to a judgement of the constitutional court of South Africa in the case of a girl who wanted to wear a nose ring in school.

"Whatever little I know, nose pin is not part of any religious practice," Justice Gupta said, adding, "Mangalsutra is, but not the nose ring".

The bench observed that all over the world, women wear earrings and it is not a case of religious practice.

"My impression is, no other country has this kind of a diversification as in our country," Justice Gupta said.

When Kamat referred to judgements from the US, the bench asked, "How could we compare USA and Canada with our country?"

"We are very conservative," said the bench, adding these judgements are given in the context of their society.

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