Karnataka order on hijab ban not innocuous, targets one community, SC told

The government order (GO), they submitted, left College Development Councils with no option but to prohibit wearing of the hijab.

Meanwhile, a bench of Justices Hemant Gupta and Sudhanshu Dhulia hearing the matter for the second day told senior advocate Devadatt Kamat, appearing for one of the appellant students, that while the right to dress is inherent in the status of an individual, the argument that it is a facet of fundamental rights cannot be stretched to “illogical lengths”, as that would suggest the right to undress, too, is part fundamental rights.

Citing the April 2014 National Legal Services Authority vs Union Of India & Ors ruling, which came in the context of third gender persons, Kamat said the court had said that “Article 19(1)(a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form.”

Justice Gupta responded, “You can’t take it to illogical lengths. Right to dress will mean right to undress also?”

“Nobody is undressing in school,” Kamat said. “I am not making cliched arguments. I am making a nuanced argument only on the limited point”.

Justice Gupta said, “Hypothetically, if you say right to dress is a fundamental right, then you can say that I don’t want to dress also…. It’s inherent in the status of a citizen. That’s it. That’s general.”

Kamat said the point he was trying to make is, “if it is an inherent part of my basic right, I am wearing a uniform and on top of it”.

Questioning the GO, Kamat said what it dictates is “my (state’s) interpretation is that the headscarf is not an essential part of religion. So you decide. (The) Almighty state is telling a school development committee that headscarf is not a part of Article 25.”

Justice Dhulia asked if he was trying to suggest that this was kind of a leading question. “You say the school committees had no alternative after this?”

“Yes…nothing else remains. Let this part go,” Kamat said.

The senior counsel also said that the GO “offends positive secularism because it is targeting only one community”.

Justice Gupta pointed out that his interpretation “may not be right”. He added that “because one community wants to come with their headscarf…every other community is following the dress code”. He asked whether there was any other violation by any other group.

Kamat said that in South India, different sections of the society, while wearing the uniform, also wear something in addition or display a certain degree of religious identity even when they go to school. Pointing out that he himself used to display such an identity, Kamat added, “Somebody wears a rudraksha, somebody wears a cross.”

Intervening, Justice Gupta said, “Rudraksha and cross are not displayed outside. They are under the shirt. Nobody is removing your shirt to find out what kind of a religious (belief you are following)…. So how does it bother? It’s a concealed thing.”

Kamat argued that the “concept of secularism accepted by SC is positive secularism — Ekam Sat Viprah Bahudha Vadanti (truth is one, the learned call it by different names)”.

Justice Gupta asked, “Is that statement that there is one God and different ways to achieve it accepted as true by all faiths in India?”

Kamat said, “The question is not about violation of uniform but wearing, displaying something as part of your religious identity in addition to the uniform. And that is something which the state should be a little more generous in accommodating.”

He argued that the HC judgment in effect resurrects an amendment proposed and rejected during the Constituent Assembly debates seeking prohibition on the wearing of any dress whereby religion of the person could be recognised.

Justice Gupta said, “The word secularism was not there in the original Constitution…. Even in the absence of the word, the Constitution was secular. It was only in 1976 we inserted the word secularism, although it may not be required, it is a political statement…. Secularism and socialism were always there. But we added (it) as a political statement…”

Kamat said the GO “expressly uses the term public order” but the state Advocate General “conceded that it’s not based on public order…. The HC also conceded it’s not based on public order…. So public order is out. Then morality…. If I wear a headscarf, whose morality is offended?”

He said the HC had stated that forcing a girl to wear hijab will militate against Article 14, but “nobody is forcing a girl to wear a hijab. If a girl exercises her right under the constitution, can the State prohibit it?…. This violates decisional autonomy and pro-choice jurisprudence, which SC has developed.”

Justice Gupta said, “Nobody is prohibiting you from wearing hijab. You can wear it wherever you want. Only restriction is in school.”

Kamat responded that the HC had said that even inside the confines of the school, it is against constitutional morality. “With highest respect, it is her decision. If she wears it, who are we to question?”

The counsel said the HC “compares a school environment…to a prison environment. It says prisoners don’t have fundamental rights. I’m amazed”

Justice Gupta pointed out that earlier rulings of SC had said even prisoners have rights.

Objecting to Kamat’s submission, Karnataka Advocate General P K Navadgi said “attributing to the High Court that students have been compared to undertrial detenues is something which I take exception to”. He said he will explain it later.

Kamat said this is not a matter which is simply a violation of a statute or a rule, but 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 Articles 19, 21 and 25. He said the question is whether a student citizen is expected to surrender her fundamental rights under Article 19, 21 and 25 as a precondition to access education.

“The long and short of the argument of the other side is you exercise the right outside school. This argument came to be rejected in the Bijoe Emmanual case (national anthem case),” Kamat submitted.

He said if the Supreme Court had accepted the argument of the school in that case, students would have been shunted out.

The arguments remained inconclusive and will continue Thursday.