New Delhi, Aug 09
The Supreme Court on Friday partly stayed a Bombay High Court upholding a Mumbai college’s decision to impose a ban on wearing of ‘hijab’, ‘burqa’ and ‘niqab’ on its campus.“We partly stay clause 2 of the impugned circular to the extent that it directs that no hijab, no cap, no badges will be allowed. We hope and trust the interim order is not misused by anybody,” a Bench of Justices Sanjiv Khanna and PV Sanjay Kumar said.
The Bench, however, didn’t interfere with that part of the circular that prohibited the use of niqab and burqa that cover full face. It gave liberty to the college administration to approach the court, if the order was misused.
“Certainly burqa can’t be permitted in a college… you can’t sit in a class like that…that’s impossible…,” the top court noted.
Issuing notice to Chembur Trombay Education Society, NG Acharya and DK Marathe, College of Art, Science and Commerce and others on a petition filed by Zainab Abdul Qayyum Choudhary and others, the Bench posted the matter for further hearing in the week commencing on November 18. It noted that the issue was already pending before the top court in a case related to Karnataka hijab ban in which a two-judge Bench had delivered a split verdict on October 13, 2022.
On behalf of the college administration, senior counsel Madhavi Divan contended that face-covering niqab/burqa acted as a barrier to interaction among students. There were 441 girls from the Muslim community who had been “happily attending” the college and only three of them had problems with the rule, she pointed out.
“How are you empowering women by telling them what to hear? The less said the better. Where is the choice for the woman? You have suddenly woken up to the fact that they are wearing it. It is unfortunate that these are all being said after so many years of independence and you say religion is there in this country,” the Bench said.
“Will the students’ names not reveal their religious identity?…Will you say that somebody wearing ‘tilak’ or ‘bindi’ will not be allowed?” it wondered. The Bench, however, agreed with Divan that face-covering veils can’t be allowed in class and did not interfere with that part of the circular that prohibited the use of niqab and burqa.
Represented by senior counsel Colin Gonsalves, the petitioners have challenged the circular prescribing dress code on the ground that restriction on hijab, niqab, burka, stole, caps, etc., on the campus, terming it as arbitrary and discriminatory and violating their right to choose their attire, right to privacy, right to freedom of expression under Article 19(1)(a) and right to religion under Article 25 of the Constitution.
However, the Bombay High Court had on June 26 refused to interfere with the decision of the Chembur Trombay Education Society’s NG Acharya and DK Marathe College imposing the ban, saying such rules did not violate students’ fundamental rights.
A dress code was meant to maintain discipline which was a part of the college’s fundamental right to “establish and administer an educational institution”, it had said.
“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 the larger academic interest of the students as well as for the administration and discipline of the College that this object is achieved,” the high court had said.
“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 HC had added.
