The Right to Dress: Fashion as Expression Under Constitutional Law

ABSTRACT

The right to dress as form of personal expression intersects with constitutional guarantees of freedom of speech and expression, yet it faces restriction in various contexts such as schools, workplaces and public spaces. This article explores whether fashion choices constitute protected expression under constitutional law focusing on India’s article 19(1)(a) the U.S. First Amendment, and European human rights framework. Through doctrinal analysis and comparative review, it examines landmark cases like Tinker vs Des Moines in the U.S., the Karnataka Hijab Ban in India, and Ebrahimian V. France in Europe. Key findings reveal that while codes recognise dress as expressive conduct restrictions are often upheld for reasons of neutrality, discipline or public order, sometimes undermining individual autonomy. The research argues for broader protections to align with evolving societal norms recommending judicial guidelines that prioritise proportionality and non-discrimination. This contributes to discourses on identity, gender and cultural rights in multicultural democracies.

INTRODUCTION

In an era where personal identity is increasingly articulated through attire, the intersection of fashion and constitutional law raises profound questions about individual autonomy and state authority. From school uniforms to workplace dress codes and religious garments restrictions on clothing often spark debates on freedom of expression. Consider the 2022 Karnataka Hijab controversy in India, where students were barred from wearing headscarves in educational institutions igniting nationwide protests and legal challenges. Similarly in the United States, students have contested dress codes prohibiting certain hairstyles or apparel invoking First Amendment protections. In Europe, bans on religious systems in public employment have been justified under principles of secularism.

This article examines the constitutional rights to dress as a form of expression, arguing that fashion choices embody symbolic speech deserving robust protection, subject only to reasonable restrictions. The research objective is to analyse how courts in India, the U.S. and Europe interpret dress within freedom of expression frameworks, identifying gaps in protection and proposing reforms. The scope focuses on public institutions excluding private entities without state involvement.

The significance of this study lies in the relevance to marginalised groups including women, religious minorities and youth, who often bear the brunt of dress regulations. Understanding these dynamics is crucial for policymakers and advocates promoting inclusive societies. Thisarticle proceeds as follows – Part A explores the historical absurdities of dress regulations, Part B reviews the legal framework, Part C Discusses analytical perspectives, Part D provides a comparative analysis, Part E outlines findings and Part F conclude with recommendations.

THE COMICAL CORSET OF HISTORY: SUMPTUARY LAWS AND THEIR MODERN ECHOES

Ah, Fashion-the eternal battleground where silk meets statute and velvet vies with verdicts. Imagine, if you will, a world where we win the wrong shade of purple could land you in the stocks, or wear a moustache might mark you as a cultural criminal. Welcome to the whimsical yet worrisome realm of sumptuary laws, those ancient edicts that turned tailors into traitors and wardrobes into weapons of class warfare. These regulations spanning from medieval Europe to colonial outposts, weren’t about keeping hems in cheque they were society’s sneaky way of saying, “know your place or else” but as we chuckle at their absurdity, let’s pause: at today’s dress code just sumptuary laws in sheep’s clothing, stifling expression under the guise of uniformity?

Let’s stroll down history’s runway, shall we? In mediaeval English Ireland Sumptuary laws weren’t content with mere fabrics-they targeted hairstyles and hues with the precision of a picky stylist. Irish men were forbidden from sporting “moustaches in the Irish fashion”, lest their facial foliage foster rebellion, while saffron shirts were banned for evolving Gaelic pride.
Picture a burly warrior fined for his whiskers-talk about a closed shave with the law! as Sarah Grace Heller notes in her scholarly dissection, these laws were less about aesthetics and more about enforcing colonial control using clothing to demarcate “us” from “them”. Fast forward to Tudor England where the 1533 act for Reformation of excess and apparel dictated who could wear what based on rank. Nobles got velvet, communist got wool violators fined and stripped. One can’t help but giggle at the picture of a yeoman sneaking a silk stalking, only to be outed by a nosy neighbour. Yet, beneath the humour lies a thought-provoking truth: these laws reinforced hierarchies, punishing aspiration as if climbing the social ladder was a fashion faux Pas.

Across the pond in 17th century Tallin, Sumptuary edicts escalated the comedy to farce. Women were barred from excessive lace and men from ostentatious buttons, with punishments ranging from fines to public shaming in church. No holy hideaway from the overdressed! Joanna Phillip’s thesis on personal appearance regulation highlights how these laws evolved from class maintenance to economic control, as rising trade blurred social lines. In one hilarious instance, a Munich statute allowed violations if you paid a licence fee essentially a “fashion tax” for the fabulous. It’s like history’s version of a VIP pass pay up and parade your pearls. But provoke deeper thought: why did societies obsess over outfits? as Diane Owen Hughes argues in her analysis of Italian sumptuary laws, clothing was a visual vocabulary of power, and regulating it preserved the status quo. Women, often the primary targets, faced double standards sumptuous gowns symbolized virtue for the elite but wise for the masses.

Now fast forward to today: aren’t hijab bans or school uniform mandates modern sumptuary echoes? In India, the Karnataka Hijab ruling echoes medieval moustache bans, deeming attire “non-essential” while ignoring its expressive essence. In the U.S. dress codes prohibiting distracting hairstyles hark back to Tudor excesses, Controlling bodies on educational protests.

Europe’s burqa prohibitions justified by neutrality mirror renaissance restrictions on religious garb. Humour aside – though who doesn’t smirk at laws banning “immoderate great sleeves” in colonial Massachusetts? These historical hijinks provoke serious reflection. If clothing makes the man (or woman) then laws unmake Individuality often targeting the marginalised why do we still let fabrics free freedoms perhaps it’s time to unravel these threats recognising dress as a constitutional canvas for self-expression after all in a democracy shouldn’t the only bad outfit be an unjust law?

LITREATURE REVIEW/ LEGAL FRAMEWORK

The constitutional right to dress draws from foundational principles of freedom of expression equality and dignity. In India, Article 19(1)(a) of the Constitution guarantees freedom of speech and expression which courts have interpreted to include non-verbal forms like attire. In NALSA vs Union of India, the Supreme Court held that gender identity expression through clothing is protected under Article 19(1)(a) emphasising personal autonomy. Similarly, Article 21’s right to life and liberty encompasses dignity in self-presentation as seen in common cause vs Union of India, where bodily integrity was affirmed. However, restrictions under Article 19 (2) for public order or morality apply, as in the Karnataka High Court’s Resham vs State of Karnataka (2022) holding a hijab ban in schools as non-essential to Islam and unnecessary for uniformity.

In the United States, the First Amendment protects expressive conduct including dress as established in Tinker vs Des Moines independent Community School District (1969), Where student’s arm bands protesting the Vietnam War were deemed symbolic speech. The court ruled that student expression could only be restricted if it caused substantial disruption. Subsequent cases like Cohen vs California (1971) extended this to apparel with messages, striking down a conviction for wearing a jacket inscribed with profanity. However, school dress codes are often upheld under Bethel School District No.403 vs Fraser (1986) and Hazelwood School District vs Kuhlmeier (1988) allowing regulations for educational purposes. Scholarly works, such as Ruthin Robson’s dressing constitutionally (2013), argue that dress codes reinforce hierarchies, linking attire to identity politics.

In Europe Article 10 of the European Convention on Human Rights (ECHR) safeguards freedom of expression including dress as manifestation of belief under Article 9. The European Court of human rights in Ibrahiminan vs France (2015) upheld a ban on religious symbols for public servants to maintain neutrality. Conversely, Lachiri vs Belgium protected a wheeled women’s rights in codes as non-disruptive. Literature like Jill Marshall’s human rights law and personal identity (2014) critiques these rulings for prioritising state secularism over individual rights.

Statutory frameworks complement these: India’s uniform civil code debates influence dress norms, while US Title Seven prohibits workplace discrimination based on religious attire and international instruments like article 19 of the ICCPR reinforce expression rights influencing domestic jurisprudence.

ANALYSIS

Dress as expression transcends, mere aesthetics embodying cultural, political and personal narratives. In constitutional law, it qualifies our “symbolic speech” when intended to convey a message likely understood by viewers, per Spence vs Washington (1974) in the U.S. Applying this, fashion choices like hijabs or punk attire communicate identity, warranting Protection unless restrictions meet strict scrutiny or proportionality tests.

Critically, Restrictions often disproportionately affect minorities. In India, the Shirur mutt test for essential religious practises under Article 25 has been weaponized against Muslim women’s hijabs as in Resham, Where the court deemed it non-essential ignoring subjective belief this contrasts with NALSA, where transgender dress was protected as expression, highlighting inconsistency. The Supreme Court’s split verdict in a hijab appeals (2022) the need for a unified approach prioritising Article 19(1)(a) over essentiality.

In the U.S. while Tinker protects passive expression, lower courts uphold dress codes in cases like Blau vs Fort Thomas Public School District (2005) where the students desire for “dress blues” was dismissed as non-expressive. However, Castorina vs Madison County School Board (2001) struck down confederate flag bands as viewpoint discrimination. Scholars like Deborah Ahrens in “Of dress and redress” or give such quotes stifle cultural pluralism, echoing sumptuary laws that historically enforced class hierarchies.

European jurisprudence emphasises proportionality under ECHR Article 10(2). In S.A.S. vs France (2014), the Burka ban was upheld for “living together” but critiqued for gender bias. Taran Harmon Walker’s “Fundamental Rights or Hand-Me-Down Restrictions” (2021) traces sumptuary influences in modern doctrines advocating recognition of dress as core to dignity.

Overall, while protections exist, judicial deference to institutional interests undermines expression, particularly for women and minorities. A right-based analysis demands evidence based restrictions and not stereotypes.

COMPARATIVE STUDY

Comparatively, Indias Article 19 (1)(a) aligns with the U.S. first Amendment in recognising non-verbal expression but allows broader restriction under Article 19(2) than U.S. strict scrutiny. In Menaka Gandhi vs Union of India (1978) India adopted a “reasonableness” test akin to proportionality, yet hijab cases show stricter application than U.S. students speech protection in Tinker. Europe’s margin of appreciation doctrine grant states leeway, as in Leyla Sahin vs Turkey (2005), upholding university headscarf bands contrasting India’s essential practises test but sharing secular justifications.

U.S. cases emphasise disruption for example Minnesota Voters Alliance vs Mansky (2018), striking polling place apparel bans. While India focuses on morality, as in dress code enforcements. Europe’s focus on neutrality per Achbita vs G4S (2017) by the ECJ, permits employer bans on visible religious symbols, differing from India’s religious freedom under Article 25.

This comparison reveals a global tension: expression vs uniformity. India could adopt U.S. style viewpoint neutrality, while Europe might benefit from India’s dignity emphasis.

FINDINGS AND OBSERVATIONS

Key findings indicate that dress is constitutionally protected as expression but often subordinated to institutional goals. In India Article 19(1)(a) offers potential safeguards, yet judicial interpretations vary U.S. jurisprudence provides stronger student protection but falters on general dress rights. Europe prioritises secularism, limiting religious attire.

Observations: restrictions perpetuate gender and cultural biases, as seen in disproportionate impacts on women. Scholarly consensus, from Robson’s work to Harmon-walker’s, highlights historical sumptuary echoes. Evolving norms, like post-pandemic casual dress, demand updated frameworks.

CONCLUSION AND RECOMMENDATION

In conclusion, the rights to Dress as expression under constitutional law is vital for personal autonomy, yet current doctrines inadequately protect against arbitrary restrictions. Balancing individual rights with social interest requires nuanced approaches.

Recommendations: courts should adopt proportionality test mandating evidence of harm for restrictions. Legislatures enact anti-discrimination laws for attire in public spaces educational reform should promote inclusive dress policies. Future research could explore digital fashion expression.

REFERENCES/ BIBLIOGRAPHY

1. Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 SCC 438 (India).

2. Common Cause v. Union of India, (2018) 5 SCC 1 (India).

3. Resham v. State of Karnataka, 2022 SCC OnLine Kar 315 (India).

4. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). 5. Cohen v. California, 403 U.S. 15 (1971).

6. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).

7. Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy – from Our Hairstyles to Our Shoes (Cambridge Univ. Press 2013).

8. Ebrahimian v. France, App. No. 64846/11, Eur. Ct. H.R. (2015).

9. Lachiri v. Belgium, App. No. 3413/09, Eur. Ct. H.R. (2018).

10. Jill Marshall, Human Rights Law and Personal Identity (Routledge 2014).

11. 42 U.S.C. § 2000e (2018).

12. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

13. Spence v. Washington, 418 U.S. 405 (1974).

14. Comm’r, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 (India).

15. Aishat Shifa v. State of Karnataka, (2023) 2 SCC 1 (India) (split verdict).

16. Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005).

17. Castorina v. Madison Cnty. Sch. Bd., 246 F.3d 536 (6th Cir. 2001).

18. Deborah M. Ahrens & Andrew M. Siegel, Of Dress and Redress: Student Dress Restrictions in Constitutional Law and Culture, 54 Harv. C.R.-C.L. L. Rev. 49 (2019).

19. S.A.S. v. France, App. No. 43835/11, Eur. Ct. H.R. (2014).

20. Taran Harmon-Walker, Fundamental Rights or Hand-Me-Down Restrictions: The Specter of Sumptuary Law in Clothing Expression Doctrines of the U.K., the U.S., & Canada, 49 Ga. J. Int’l & Comp. L. 177 (2021).

21. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).

22. Leyla Şahin v. Turkey, App. No. 44774/98, Eur. Ct. H.R. (2005).

23. Minnesota Voters All. v. Mansky, 585 U.S. 1 (2018).
Case C-157/15, Achbita v. G4S Secure Sols. NV, 2017 E.C.R. I-145