On Friday, August 9, the Supreme Court temporarily halted a Mumbai private college’s ban on hijabs, caps, and badges worn by students. This interim order came as the Court reviewed a petition from Muslim women students of NG Acharya & DK Marathe College, who were challenging the Bombay High Court’s decision that had supported the college’s restrictions.
At the outset, Justices Sanjiv Khanna and Sanjay Kumar expressed surprise at the college-imposed condition regarding religious attire.
Justice Khanna questioned, “What is this? Don’t impose such a rule. Are you saying that students’ religion should not be revealed?” He pointed out that students’ names could still indicate their religion and questioned whether they would be identified only by numbers.
Justice Kumar added, “Let them study together,” in response to the college’s rationale.
When Senior Advocate Madhavi Divan, representing the college, argued that it was a private institution, Justice Kumar asked about the college’s history. Upon learning the college had been established in 2008, he remarked, “After all these years, you suddenly realize the issue of religion? It’s unfortunate that such instructions come up only now.”
Justice Khanna further inquired, “Will you also ban students wearing tilak?”
Divan stated that 441 Muslim students were “happily attending” the college and that objections were raised by only a few students who had not always worn the hijab.
Justice Kumar responded, “Shouldn’t it be up to the girl what she wants to wear?”
Divan argued that face-covering veils like nakabs and burkhas impede interaction. The bench agreed with this aspect of the instruction and did not intervene regarding the prohibition of face-covering veils.
The bench issued a notice on the petition, returnable in the week commencing November 18. It clarified that the stay order should not be misused and allowed the college to seek modifications if necessary.
Senior Advocate Dr. Colin Gonsalves represented the petitioner.
To recap, on June 26, the Bombay High Court dismissed petitions from nine female students challenging NG Acharya & DK Marathe College’s dress code, which banned hijabs, nakabs, burkhas, stoles, caps, and other religious attire on campus.
A division bench of Justices AS Chandurkar and Rajesh S Patil observed –
The purpose behind implementing the dress code is clear from the Instructions, which indicate that the goal is to prevent the display of religious identity by students. This policy aims to serve the broader academic interests of both the students and the college, contributing to effective administration and discipline. Students are expected to focus on their education and academic progress while attending the institution. Adherence to the dress code applies only within the college premises and does not infringe upon the petitioners’ freedom of choice and expression outside of it.
The High Court referenced the Karnataka High Court’s Full Bench decision in Resham v. State of Karnataka, which upheld a government order mandating a dress code that excludes hijabs.
The High Court expressed its respectful agreement with the Full Bench’s view, stating, “The prescription of a dress code is intended to promote uniformity among students in schools and colleges, maintaining discipline and preventing the disclosure of religious identity.”
It is important to note that the Karnataka High Court’s judgment is currently under review by the Supreme Court, following a split verdict delivered by a division bench in October 2022.
The petitioners, who are in their second and third years of undergraduate studies, have challenged the dress code on the grounds that the ban on hijabs, niqabs, burkas, stoles, and caps violates their fundamental rights. The dress code requires students to wear formal and decent attire that does not reveal their religious affiliation.
The students argue that the dress code is arbitrary and discriminatory, infringing upon their rights to attire choice, privacy, expression under Article 19(1)(a), and freedom of religion under Article 25 of the Constitution.
The petition is drafted by Advocate Hamza Lakdawala and filed through Advocate Abiha Zaidi.
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