Hijab row: ‘Right to dress will include right to undress?’ SC remarks at hearing

Hearing the batch of petitions challenging the Karnataka High Court’s judgment, which upheld the ban on the wearing of Hijab by Muslim girl students in some schools and colleges in the state, Justice Hemant Gupta of the Supreme Court Wednesday asked a lawyer arguing for the right to wear the hijab in educational institutions: “Right to dress will include right to undress also?”

Justice Gupta told Senior Advocate Devadatt Kamat, appearing for the petitioner in the lead petition, Aishat Shifa v. State of Karnataka, Justice Hemant 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. To the lawyer’s argument that students wear rudraksh too, Justice Gupta said: “That’s worn inside the shirt. Nobody will lift the shirt and see.” The lawyer replied, “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.

Also read: Why Islamist radicals welcome Karnataka High Court’s hijab ruling

The lawyer 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, underscoring that there 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 argument and said: “You can’t take it to illogical ends. Right to dress will include right to undress also?” Justice Gupta remarked: “Problem here is that one particular community is insisting on a headscarf (hijab) while all other communities are following the dress code. Students of other communities are not saying we want to wear this and that.”

The court was hearing arguments on a batch of pleas challenging the Karnataka High Court verdict refusing to lift the ban on hijab in educational institutions of the state. It also discussed the religious significance of various objects and whether wearing the same could infringe discipline of an educational institute. In this context, when the lawyer referred to the South African judgment of KwaZulu-Natal and Others v Pillay, which allowed a Tamil Hindu student to wear nose ring in schoo, 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.

Senior Advocate Kamat differentiated between positive and negative secularism and stated that the Government Order banning hijabs in educational institutions went against positive secularism. “Hijabs in educational institutions was against positive secularism… 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, however, disagreed with this interpretation of the Government Order and stated: “Your reading of the Government Order may not be correct, because it is only one community which wants to come in religious dress.” In the last hearing on the matter, Justice Gupta had orally remarked that a “pagdi” was not equivalent to a “hijab” and the two could not be compared.

The row began on January 1 at Government PU College in Udupi, where six women students said they were not allowed to enter classrooms wearing the hijab. They started a protest, which snowballed into a nationwide issue. Hindu students, wearing saffron scarves, spread to other states in counter-demonstrations.

After students were stopped at other places, too, several petitions were filed in the Karnataka High Court, in which Muslim students cited Articles 14, 19 and 25 of the Constitution. The state BJP government had justified the ban under its 1983 Education Act. In a February 5 order, it said the government reserved the right to issue directions to schools and colleges “to ensure maintenance of public order”.