Prerna Gala
Published on: September 9, 2022 at 18:43 IST
The Supreme Court informed the petitioners in the case contesting the hijab ban in Karnataka government educational institutions on Wednesday that if the right to dress is claimed to be an absolute fundamental right under Article 19 of the Constitution, then the right to undress would also be recognised as such.
Therefore, a bench presided over by Justice Hemant Gupta questioned Senior Advocate Devadatt Kamat, who was representing the petitioner, about whether the liberty to dress as a feature of Article 19 can be carried to absurd lengths.
After Kamat argued that the right to dress is recognised as a basic right under Article 19(1)(a), citing the Supreme Court’s 2014 NALSA verdict.
Background
In a series of appeals contesting a Karnataka High Court decision that essentially upheld the prohibition on wearing the hijab in government institutions and universities, the Supreme Court last week gave the State of Karnataka notice.
On March 15, the Karnataka High Court upheld a Karnataka government order (GO) that provided government colleges in the State the power to prohibit Muslim female students from donning hijabs on campus.
The High Court received petitions from Muslim female students from a number of institutions in Karnataka who had been refused permission to attend class because they were donning the headscarf.
Justice Ritu Raj Awasthi, a former chief justice, and Justices Krishna S. Dixit and J.M. Khazi reached the following conclusions:
- Wearing the hijab is not a requirement for practicing Islam;
- According to Article 19(1)(a), requiring uniforms is a fair limitation on the right to freedom of speech;
- The GO may be passed by the government; its invalidation is not argued.
The High Court “failed to identify that the freedom to wear a Hijab comes under the purview of ‘expression’ and is thus protected by Article 19(1)(a) of the Constitution,” according to one of the arguments made before the Supreme Court in one of the appeals.
It further claimed that the High Court disregarded the fact that wearing a hijab is protected by the right to privacy guaranteed by Article 21 of the Indian Constitution.
The Karnataka Education Act, 1983, and the Rules made thereunder, it is said, do not mandate a particular uniform for pupils to wear.
Arguments Today
In support of Ayeshat Shifa, senior attorney Devadatt Kamat stated that the State had failed to make a reasonable accommodation to allow the student to enjoy her rights under Articles 19 and 21.
“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.
Then he explained how hijab is permitted in Kendriya Vidyalayas run by the Central government.
He also cited a judgment of the Constitutional court of South Africa which had allowed a Hindu girl to wear a nose ring.
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.
“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 cited Karnataka Advocate General (AG) Prabhuling Navadgi’s argument.
Kamat argued that every student wears religious insignia to school, especially in South India.
“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.
According to Kamat, the GO violates Article 14 since it expressly targets outward displays of one particular religious belief.
He further asserted that the right to dress is a form of freedom of speech by citing Article 19 and the 2014 NALSA verdict of the Supreme Court.
He Insisted that it does not compromise morality or pose a threat to public order.
“No one is forcing her to wear it, but if the girl choses to wear it can the State prohibit this,” Kamat asked.
“No one is prohibiting her to wear the hijab… but only in school,” Justice Gupta said.
He also objected to the High Court’s analogy of convicts wearing uniforms.
“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.