“Will Right To Dress Include Right To Undress?” Supreme Court Remarks At Hijab Row Hearing

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Justice Hemant Gupta of the Supreme Court today asked a lawyer arguing for the right to wear the hijab in education institutes: “You can’t take it to illogical ends. Right to dress will include right to undress also?”
The lawyer, Dev Datt Kamat, replied, “Nobody is undressing in a school.”

This was part of a longer exchange between the court and the lawyer, during which Justice Gupta also 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.”

When lawyer Kamat said many students wear rudraksh or cross as a religious symbol, the judge responded: “That is worn inside the shirt. Nobody is going to lift the shirt and see if someone is wearing rudraksh.”

The court is hearing arguments on a batch of pleas challenging the Karnataka High Court verdict refusing to lift the ban on hijab — scarf that covers the hair, neck, and sometimes a woman’s shoulders — in educational institutions of the state.

The bench of Justices Hemant Gupta and Sudhanshu Dhulia had on Monday spelt out a key issue at the heart of the matter: “You may have a religious right to practise whatever you want to practise. But can you practise and take that right to a school which has uniform as a part of dress you have to wear? That will be the question.”

On whether wearing hijab is an essential practice under Article 25 of the Constitution, the bench had said, “The issue can be modulated little bit in a different way. It may be essential, it may not be essential.”

“What we are saying is whether in a government institution you can insist on carrying your religious practice. Because the Preamble says ours is a secular country,” the bench observed at a previous hearing.

The row began on January 1 at Government PU College in Udupi, where six female students said they were not allowed to enter classrooms wearing the hijab. They started a protest, which soon became a statewide issue. Counter-demonstrations by Hindu students wearing saffron scarves spread to other states too. The college principal said students used to wear hijab to the campus but removed it before entering the classroom; the students said he’s lying.

After students were stopped at other places too, several petitions were filed in the Karnataka High Court in which Muslim students citing Articles 14, 19 and 25 of the Constitution.

The state BJP government, meanwhile, justified the ban under its 1983 Education Act. In a February 5 order, it said the government reserves the right to issue directions to schools and colleges “to ensure maintenance of public order”. Colleges that fall under the Karnataka Board of Pre-University Education, dress code prescribed by the institution be followed, it said. If that’s not fixed, clothes that “do not threaten equality, unity, and public order” must be worn.

The High Court ruled that the hijab is not an “essential religious practice” that can be protected under the Constitution.

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