The Supreme Court, hearing a clutch of petitions against the Karnataka High Court judgment nixing the wearing of hijab in educational institutions, on Wednesday observed that the issue is one particular community insists on a head scarf while others follow a dress code, and also the petitioners' counsel argument on right to dress cannot be taken to "an illogical level".
Senior advocate Devadatt Kamat, representing a Muslim student, submitted that right to dress is recognized as a fundamental right under Article 19(1)(a) and said if one goes to school wearing a hijab and that person would not be allowed, then the state violates Article 19.
Kamat submitted before a bench comprising Justices Hemant Gupta and Sudhanshu Dhulia that the Karnataka government's GO is compelling the students to choose between their identity and dignity and right to education. At this, Justice Gupta orally remarked: "You cannot take it to an illogical end... right to dress is a fundamental right then right to undress also becomes a fundamental right?..."
As Kamat replied: "I am not here to make cliche arguments... No one is undressing in school�", Justice Gupta said that no one is denying the right to dress. Kamat then said whether could wearing of this additional dress (hijab) be restricted based on Article 19.
Justice Gupta noted that the problem here is one particular community is insisting on a head scarf while other communities are following the dress code. He added that students of other communities are not saying that they want to wear this and that.
Questioning the Karnataka government's GO, Kamat said there has to be a reasonable accommodation for the students trying to exercise their fundamental rights under Articles 19, 21, and 25 of the Constitution, and the hijab does not create any public order issue. Kamat said if a girl chooses to wear a hijab, can the state prohibit this?
The bench replied: "No one is prohibiting her to wear the hijab... but only in school." When Kamat cited foreign judgments from the US and South Africa, Justice Gupta said "come to India", adding that no other country has diversity like India.
During the hearing, it was argued that the South African court had held that asking the girl to remove her nose ring even for a short period would send out the message that she and her religion were not welcome. Justice Gupta said that the nose pin is not a religious symbol and women wear earrings all over the world, but it is no religious practice.
The bench said South Africa does not have a diverse population like India and scheduled the matter for further hearing on Thursday.
The top court was hearing a clutch of petitions against the Karnataka High Court judgment, which upheld the right of educational institutions to ban the wearing of hijab in pre-university colleges in the state. (AA/IANS)