Karnataka hijab row: ‘Will right to dress also mean right to undress?’ asks Supreme Court

While hearing arguments on behalf of petitioners challenging the hijab ban in Karnataka’s government institutions, the Supreme Court on Wednesday remarked if the right to dress would also mean a right to undress.

The remark came from Justice Hemant Gupta, in response to an argument that the right to dress forms part of the fundamental right of freedom of speech and expression under Article 19 (1)(a), and the same has also earlier been laid down by the court.

“You can’t take it to illogical ends. Right to dress would mean right to undress also?,”Justice Hemant Gupta remarked.

In a batch of pleas challenging the ban on hijab in Karnataka Government PU institutes, senior advocate Devadatt Kamat, appearing for petitioners, argued that it has been laid down by the top court in the NALSA judgment that the right to expression under 19(1) (a) of the Constitution includes right to dress.

He added that even in this situation, while there can undoubtedly be a reasonable restriction under Article 19(2), in the present case the women are not refusing to wear the uniform.

“I am not refusing to wear the uniform. But with the uniform, if I wear a headscarf, could it be a reasonable restriction is the question,” Mr Kamat said.

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Kamat also argued that with regard to the right to freedom of speech and expression , the Supreme Court has developed jurisprudence over the last several decades that the term ‘expression’ is of extremely broad import.

The bench, however, asked Mr Kamat ,”You just said the right to dress is part of fundamental rights. Which judgement says it?’

Mr Kamat then referred to the case of National Legal Services Authority vs Union of India, where the court had said ‘Article 19(1) guarantees those great basic rights which are recognised and guaranteed as the natural rights inherent in the status of the citizen of a free country.

Relying on the observation, Mr Kamat argued that the right to dress is a basic right.

“You can’t take it to illogical ends. Right to dress would mean right to undress also?,” Justice Gupta said.

“I’m not saying that. Nobody is undressing in schools,” Mr Kamat responded.

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Justice Hemant Gupta further said,”Hypothetically, let’s say the right to dress is a fundamental right, so you can say I don’t want to wear a dress also?”

Mr Kamat responded by saying that he was not making a nuanced argument and not a cliched argument.

“You were saying the right to dress is a fundamental right,”Justice Gupta remarked.

Responding to the court’s statement that no one is denying the right to dress, Mr Kamat further said that the question is if wearing of an additional dress as part of article 19 can be restricted. He also argued that Article 19(2) is not relevant in the present situation. The court will continue to hear the matter on Thursday, September 8.

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