The Supreme Court, while hearing petitions challenging the hijab ban in educational institutions in Karnataka for the second day, on Wednesday, 7 September, asked if the "right to dress will include right to undress also?"
The court was responding to the contention raised by the petitioner's counsel that the right to dress has been recognised by the top court itself in a 2014 judgment as a fundamental right under Article 19(1)(a) of the Constitution.
"You can't take it to illogical ends. Right to dress will include right to undress also?" Justice Hemant Gupta said, as quoted by Live Law.
On the other hand, senior advocate Devdutt Kamat, appearing for the petitioners challenging the ban on the hijab, said that he was not making a "cliché argument" and that no one was undressing in school.
"No one is denying the right to dress," Justice Gupta said.
The matter is being heard by a bench of Justices Hemant Gupta and Sudhanshu Dhulia. The hearing is slated to resume on Thursday.
'Government Order Is Against Positive Secularism': Kamat
"The Karnataka government order is giving petitioners a Hobson's choice, forcing them to choose between their dignity and identity and their right to education," argued Senior Advocate Devdutt Kamat, appearing for the petitioners challenging the ban on hijab in Karnataka schools and colleges.
Kamat further said:
"This is not a matter which is simply a violation of a statute or a rule. This involves a primary question as to whether the State has failed in its obligation to provide for reasonable accommodation for a student's right under 19, 21, and 25."
His other arguments included:
The government order is against positive secularism as it targets one community.
Nobody is forcing women to wear a hijab, but the question of whether a girl can be prohibited from wearing it out of choice remains.
The state violates Article 19 by saying that if a student wears a hijab to school, they will not be allowed in.
Background
The Supreme Court began hearing arguments in the batch of petitions challenging the ban on hijab in educational institutions in Karnataka on Monday, 5 September. On 29 August, the top court issued a notice in the matter.
In March this year, the Karnataka High Court upheld the state government's ban on Muslim students wearing hijabs in schools and colleges. The ban was packaged as a general rule on following uniforms without wearing religious garb.
The female students had protested the hijab ban, first imposed by individual institutions and then through a government order, and had said that it was a component of their essential religious practice.
They also said that their freedom to dress that way was constitutionally validated as freedom of conscience and that such bans on their religious attire were hostile discrimination.
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