Banning Hijab On College Campus Is In Larger Academic Interest, To Avoid Disclosure Of Religion: Bombay High Court While Dismissing Students' Plea

The Bombay High Court on Wednesday observed that the dress code prohibiting students from wearing hijab, nakab, burka, stole, cap etc. on the campus of a Mumbai college is in students' larger academic interest.

A division bench of Justice AS Chandurkar and Justice Rajesh S Patil while dismissing a writ petition against the dress code by nine female students NG Acharya and D. K. Marathe College of Art, Science and Commerce 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 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. In that case, the Karnataka High Court had held that such a dress code aimed at treating students as a homogeneous class to serve constitutional secularism and was not violative of any fundamental rights.

“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 court stated.

Challenge to this Karnataka HC 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 contended that the dress code was arbitrary and discriminatory, infringing upon their right to choose their attire, their right to privacy, and right to expression under Article 19(1)(a) and their right to freedom of religion under Article 25 of the Constitution.

On the contrary, the college argued that the dress code applied equally to all students, aiming to maintain discipline and prevent the disclosure of students' religious identities through their attire.

At the outset, the court noted the college's denial of issuing any WhatsApp message on May 1, 2024, and a statement that the college would only enforce the instructions on the college website regarding the dress code. Given this, the court deemed it unnecessary to further consider the WhatsApp message.

The court referred to previous judgments, including Fathema Hussain v. Bharat Education Society and Ors. (2003), where a similar challenge to a headscarf prohibition was dismissed. The Bombay High Court had held that requiring students to adhere to a prescribed dress code did not infringe upon their fundamental rights under Article 25 of the Constitution of India.

Further, the court cited the Kerala High Court's decision in Fatima Thanseem (Minor) v. State of Kerala, which upheld a school's right to prescribe a dress code emphasizing the institution's right to administer its educational environment.

The court noted that the dress code in question is applicable to all students irrespective of their caste, creed, religion or language. It further said that the college administration had a fundamental right to manage its institution, including prescribing a dress code, under Article 19(1)(g) of the Constitution.

The court further held that the college's dress code did not violate UGC (Promotion of Equity in Higher Educational Institutions) Regulations, 2012, and other educational policies aimed at promoting non-discriminatory environments.

“We do not find as to how these guidelines and instructions are violated by the Instructions issued by the College. On the contrary, the Policy on Code of Ethics laid down by the Management of the College seeks to enforce the aforesaid guidelines and instructions”, the court observed.

The court rejected the petitioners' argument that donning a hijab or nakab was an essential religious practice, citing insufficient pleadings. “The pleadings in the writ petition to support the plea that donning of a Hijab or Nakab is an essential religious practice however are insufficient. Except for stating that the same constitutes an essential religious practice on the basis of the English translation of Kanz-ul-Iman and Suman Abu Dawud, there is no material placed to uphold the petitioners' contention that donning of Hijab and Nakab is an essential religious practice.”

Case no. – WP(L)/17737/2024 [Original]

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