Supreme Court Stays Hijab Ban Imposed By Mumbai Private College

The Supreme Court on Friday (August 9) stayed the instruction issued by a private college in Mumbai banning the wearing of hijab, cap or badges by students on campus.

The Court passed the interim order while hearing a petition filed by 3 Muslim women students of NG Acharya & DK Marathe College of Mumbai. The petitioners approached the Supreme Court challenging the Bombay High Court's judgment which upheld the college's instructions.

A bench of Justices Sanjiv Khanna and Sanjay Kumar at the outset expressed surprise at the condition imposed by the college.

"What is this? They will not reveal their religion? Don't impose such a rule" Justice Khanna said, referring to the college's reasoning that the rule was imposed so that the religion of the students was not revealed.

"Won't their names reveal their religion? Will you ask them to be given numbers so that they are not addressed by name?" Justice Kumar asked.

When Senior Advocate Madhavi Divan, representing the college, said that it was a private unaided institution, Justice Kumar asked since when the college had been functioning. On the senior counsel replying that the college had been in existence since 2008, the judge commented, "It's unfortunate that you come up with such instructions after so many years of independence...suddenly you realise that there is religion."

"Will you say that somebody wearing tilak will not be allowed?" Justice Khanna asked Divan.

Divan submitted that 441 Muslim women students are "happily attending" the college and the objection was raised only by a few. In response, Justice Khanna said,  "They must study together".

When the senior counsel informed that the 3 girls who petitioned the court have switched to another college and that students were not wearing the hijab since always, Justice Khanna said, "That is sad...How are you empowering women by telling them what to wear?".

Justice Kumar, on the other hand, asked, "Will it not be upto the girl what she wants to wear?"

At this juncture, Justice Khanna observed that authorities must understand the background that students belong to. "Family members may say wear it and go and they have to wear," the judge remarked.

"Don't ask them to leave the college. Will stay the circular...Solution to a lot of this is proper good education," Justice Khanna added.

Contesting the possibility of a blanket order, Divan submitted that face-covering nakabs/burkha are barriers to interaction. The bench agreed that face-covering veils cannot be allowed in class and did not interfere with part of the instructions preventing the use of nakab.

The bench issued notice on the petition returnable in the week commencing from November 18. In the order, it clarified that the stay should not be misused by anybody.

Further, the bench allowed the college authorities to seek modification of the order if there is any misuse.

Senior Advocate Dr Colin Gonsalves represented the petitioners.

To recap, on June 26, the Bombay High Court dismissed petitions filed by nine female students challenging the dress code prescribed by authorities of NG Acharya & DK Marathe College, which prohibited students from wearing hijab, nakab, burkha, stole, cap, etc., on campus.

A division bench of Justices AS Chandurkar and Rajesh S Patil observed –

“The object behind prescribing the dress code is evident from the Instructions since they state that the intention is that a student's religion ought not to be revealed. It is in larger academic interest of the students as well as for the administration and discipline of the College that this object is achieved. This is for the reason that students are expected to attend the educational institution to receive appropriate instructions for advancement of their academic careers. The insistence for following the dress code is within the college premises and the petitioners' freedom of choice and expression is not otherwise affected.”

The High Court referred to the Full Bench decision of the Karnataka High Court in Resham v. State of Karnataka, which upheld a government order prescribing a dress code excluding hijabs.

“We are in respectful agreement with the view expressed by the Full Bench that prescription of a dress code is intended to achieve uniformity amongst students in the school/college so as to maintain discipline and avoid disclosure of one's religion”, the High Court stated.

Notably, challenge to this Karnataka High Court judgment is pending before the Supreme Court after a division bench delivered a split verdict in October 2022.

The petitioners, pursuing their second and third-year undergraduate courses, challenged the dress code on the ground that restriction on hijab, nakab, burka, stole, caps etc. in the campus violates their fundamental rights. Under the impugned dress code, the dress of the students is expected to be formal and decent and should not reveal the religion of any student.

The students contend that the dress code is arbitrary and discriminatory, infringing upon their right to choose their attire, right to privacy, right to expression under Article 19(1)(a) and right to freedom of religion under Article 25 of the Constitution.

The petition is drafted by Advocate Hamza Lakdawala and filed through Advocate Abiha Zaidi.

Case Title: ZAINAB ABDUL QAYYUM CHOUDHARY AND ORS. Versus CHEMBUR TROMBAY EDUCATION SOCIETYS AND ORS., Diary No. 34086-2024

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