During the 120-minute hearing, advocate Devadatt Kamat also emphasised that the concept of secularism accepted by the Supreme Court is “positive secularism”
Only one community wants to come to educational institutions wearing hijab while others are willing to follow the dress code, the Supreme Court observed on Wednesday as it prima facie disagreed that the Karnataka government’s February order on making uniforms mandatory targeted just one community.
Hearing the Karnataka hijab ban cases, the bench of justices Hemant Gupta and Sudhanshu Dhulia also disagreed with the submissions of one of the petitioners that right to dress is a fundamental right since it involves freedom of expression.
“You cannot take it to illogical ends. If the right to dress is a fundamental right, the right to undress also becomes a fundamental right… Nobody is prohibiting you from wearing the hijab. The question is about wearing it in school,” the bench told senior advocate Devadatt Kamat, who was appearing for a girl student from Udupi which turned out to be the epicentre of the original protests seeking to wear the hijab.
Kamat sought to persuade the bench that the February Government Order (GO) by the state government specifically mentioned that wearing of hijab is not a part of essential religious practice of Islam, arguing that the GO targeted only one community. The bench, however, responded: “You may not be right. Only one community wants to come with hijab or head scarf while all other communities are following the dress code.”
Kamat tried to argue that it may not be true only about one community since students also wear a ‘rudraksha’ (stonefruit worn by Hindus) or a cross in schools and colleges, and therefore the question is about showing a religious symbol in addition to wearing the uniform. “The State is required to be more generous. That’s the concept of reasonable accommodation,” he added. But the bench retorted: “Rudraksha or a cross is not worn outside but under your shirt. Nobody is asking you to take out your shirt to see what you are wearing and hence, it does not bother anyone. It is not a violation of a dress code.”
Clarifying that he is not challenging the prescription of uniform but the mandate of the state to deny fundamental rights of those wanting to wear a hijab without contravening the dress code, Kamat contended that the ban on hijab cannot be justified either as a reasonable restriction or on the grounds of public order.