Right to dress can't be taken to illogical level: SC on hijab row

'If you say right to dress is a fundamental right then right to undress also becomes a fundamental right,' the court said

The Supreme Court on Wednesday questioned the validity of arguments which insisted on wearing of hijab in schools, saying the right to dress cannot be taken to an illogical level. The court further said that the problem was that one community was bent upon using head scarf, while all others followed the uniform.

As senior advocate Devdatt Kamat, appearing for Muslim students, claimed that there was a right to dress recognised under Article 19(1)(a) (freedom of speech and expression) of the Constitution by the Supreme Court, a bench of Justices Hemant Gupta and Sudhanshu Dhulia said, "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."

"I am not here to make cliche arguments. I am proving a point. No one is undressing in school," the counsel said.

Also Read: Can right to practice religion be taken to institutions having prescribed uniform? asks SC on hijab row

To this, the bench said, "No one is denying the right to dress."

Maintaining that the constitutional standpoint is all religions are the manifestation of the one and the same, Kamath quoted the SC's judgement in Aruna Roy case which stated, "Ekam Sad, Viprah Bahudah Vadanti" (There is only God but the learned people describe it differently).

"Do all religions accept this? Is that stream of thought accepted by all religions?" the bench asked him. To this, he said, he was merely paraphrasing the SC judgement.

On the second day of hearing on a batch of petitions against the Karnataka High Court's March 15 judgement that upheld the ban on hijab in Pre University Colleges, Kamath questioned the state government's order saying there has to be a reasonable accommodation for the students seeking to exercise her fundamental rights under Article 19, 21 and 25 of the Constitution.

In his contentions, Kamat quoted liberally from the USA and South African jurisdictions which emphasised on the principle of reasonable accommodation. This also received an imprimatur from the Supreme Court here in several judgements.

He also said the question is whether the state failed to provide "reasonable accommodation" for the students in the exercise of their rights. "The questions here are not challenged to the prescription of uniform..Do students have to surrender their fundamental rights in order to get access to education?" he asked.

"It is not Burqa, Jilbab, it is merely a headscarf," he said, adding students from other faiths also used 'Tilak', 'Rudraksh' and 'cross', etc. On this, the bench said, "No one is bothered of what one wears inside the shirt."

Also Read: Video of Hijab-wearing students celebrating Onam in Kerala school goes viral

Countering previous day's assertion of Karnataka's Advocate General Prabhuling K Navadgi, he said, "The government order was not as innocuous as projected by him since it specifically prohibited use of headscarf and did not give full freedom to college development council to prescribe dress code."

Kamath also submitted that the Constitution suggested "positive secularism" instead of "negative secularism" practised by countries like France where no religious insignia could be publically displayed.

The court would continue to hear the arguments on Thursday.