Bombay High Court Reserves Order In Students' Plea Challenging Hijab Ban By Mumbai's NG Acharya & DK Marathe College Authorities

Mumbai's NG Acharya and DK Marathe College submitted before the Bombay High Court today that the purpose of banning hijab, nakab, burkha, stole, caps etc. in the campus is to avoid the display of religious symbols, unless it is part of the fundamental right to religion such as turban for Sikhs.

Senior advocate Anil Anturkar for the college management said, “And it is not only in the case of Muslims as sought to be indirectly suggested by them. It is for all. The college says that you should not disclose religious symbols. Can they show any judgement that says prima facie that hijab is essential…The idea is not that you should not wear. The idea is that you should not show it openly, unless it is part of fundamental right to religion.”.

A division bench of Justice AS Chandurkar and Justice Rajesh Patil reserved its order in a writ petition by nine female students challenging a dress code by the college authorities prohibiting students from wearing hijab, nakab, burkha, stole, cap etc, on the campus.

Courtroom exchange

Advocate Altaf Khan for the petitioners distinguished this case from the Karnataka High Court judgment on hijab ban on junior colleges, noting that while the latter dealt with school uniforms, this case concerns senior college students who have a dress code but not a uniform.

Khan pointed out that the Karnataka High Court judgment dealt specifically with the issue of the hijab, whereas this case involves nakab as well. He argued that the dress code was imposed via WhatsApp without any legal authority, contrasting it with the Karnataka case where a pre-existing uniform policy was enforced. Khan argued that the dress code is violative of the petitioners' right to choice, bodily integrity and autonomy.

Senior Advocate Anil Anturkar for the college maintained that the dress code applies to all students, not just Muslims. He challenged the petitioners to show that prima facie wearing hijab is an essential religious practice in Islam.

“If you come to the college, leave everything and study. I would be wrong if I (college) only implement it for Muslims. The priority should be to study. It is nobody's case that I am implementing this only for Muslims.”

Anturkar contended that in the future if someone comes with gada (mace) or dons bhagwa (saffron) clothes, the college will object to it. “The point is will you allow in a sensitive society like India to openly disclose and underline that I belong to this community”, Anturkar argued.

Anturkar pointed out that the petitioners are saying that it is their choice; they did not say about freedom of religion. He said that after the Puttaswamy judgment on privacy everyone think that they can do anything. “Someone who advocates nudism will then say that I have a right to come nude to the court. It is easy to say it is my choice”, Anturkar argued.

Anturkar further stressed that the petitioners were aware of the dress code when they took admission.

The university's counsel challenged the maintainability of the writ petition, pointing out that in Karnataka, a government order of hijab ban was challenged whereas this case does not involve a state instrumentality.

In his rebuttal, Khan stated that the petitioners had been wearing hijabs for two years without causing any disharmony. “My learned friend claims that wearing hijab will cause disharmony. Where is this overnight disharmony coming from? The petitioners have been wearing hijab in the college for two years. This is a violation of Article 19, 21 and Puttaswamy judgment about right to privacy”, he submitted.

Khan emphasised that the case was not about any larger public interest but to address the petitioners' grievances. “This is not for publicity but regarding students of the college. I am not saying this is not about any larger public interest. This is about rights of the petitioners in this writ petition specifically.”

Khan pointed out that the WhatsApp message specified Indian or Western non-revealing dress, arguing that the hijab is also Indian. He contended that the dress code lacks rationale.

“After the Constitution, the argument from the state cannot be that the hijab is not Indian. It is also Indian. Here the prejudice is happening to the students…The instructions say for girls it is Indian or western non-revealing dress. Hijab and niqab are absolutely non-revealing. I cannot find any theme in the instructions. It is absurd to say Indian dresses are not allowed but western dresses are allowed, in short”, Khan said.

Khan cited various guidelines and policies about increasing access of students of the SC, ST, OBC and Muslim communities to education. “These are the communities that don't have access to higher education. The guidelines were to increase their access to education. My argument is that this instruction is impeding access to education”

He argued that the ban violates Article 19 (freedom of speech and expression) and Article 21 (right to life and personal liberty) as well as the Puttaswamy judgment on the right to privacy.

Background

The petitioners, students of NG Acharya and DK Marathe College of Art, Science and Commerce in their second and third years of B.Sc and B.Sc (Computer Science) programs, claim that the new dress code violates their fundamental rights to privacy, dignity, and religious freedom.

According to the petition, the petitioners, all female students, have been wearing the niqab and hijab for several years both within and outside the college. The college recently issued an undated notice titled "Instruction for Student" on its website and through a WhatsApp message, mandating a dress code that explicitly forbids the wearing of burkha, niqab, hijab, caps, badges, and stoles.

The petitioners argue that these instructions are illegal, arbitrary, and unreasonable. The petition contends that such directives are not supported by any statutory authority and infringe upon their rights guaranteed under Articles 14, 19, 21, 25, 26, and 29 of the Constitution of India.

Case Title – Zainab Abdul Qayyum Choudhary & Ors. v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors.