The Bombay High Court on June 26 dismissed a writ petition filed by nine women students from Mumbai’s Chembur Trombay Education Society’s N. G. Acharya and D. K. Marathe College of Art, Science and Commerce, challenging a directive issued by their college, imposing a ban on all headgear, including hijab, burqa, stoles, caps, naqaabs, and badges in the classroom.
“For the aforesaid reasons, we are not inclined to interfere in the said decision. Writ petition dismissed,” a Division Bench of Justice A.S. Chandurkar and Justice Rajesh Patil said.
The second- and third-year students of the B.Sc and B.Sc Computer Science programmes at the college had approached the High Court on June 14, challenging a notice-cum-direction instructing them to follow the dress code from the new academic year starting in June. The college students in their plea had claimed the new dress code violated their fundamental rights to privacy, dignity, and religious freedom to choose what to wear.
“You shall follow the dress code of college of formal and decent dress which shall not reveal anyone’s religion such as no burqa, no nakab, no hijab, no cap, no badge, no stole, etc. Only full of half shirt and normal trousers for boys and any Indian/ western non-revealing dress for girls on the college campus. Changing room available for girls,” the notice issued by the college said.
“In the writ petition, it has been pleaded that the petitioners have been donning a hijab and/or nakab for last few years. 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. The contention in that regard therefore fails,” the judgment said.
“For the aforesaid reasons, we are satisfied that the instructions issued by the college under which a dress code has been prescribed for its students does not suffer from any infirmity so as to violate provisions of Article 19(1)(a) and Article 25 of the Constitution of India. The object behind issuing the same is that the dress of a student should not reveal his/her religion which is a step towards ensuring that the students focus on gaining knowledge and education which is in their larger interest. The instructions have been issued by the college administration in exercise of its right to administer the educational institution under Article 19(1)(g) and Article 26 of the Constitution of India. The writ petition therefore fails. It is accordingly dismissed with no order as to costs,” the judgment said further.
“We may note that the learned counsel for the petitioners was not able to justify the action of the petitioners, who are students, in seeking publicity of filing of the present proceedings even prior to the writ petition being considered for admission. This led to the college questioning the bona fides of the petitioners. Since the petitioners are students, we say nothing more and let the matter rest at that,” the Bench said in the passing.
On June 19, the Bench, after hearing both sides of the arguments, reserved the order and said it would decide on the prima facie admissibility and maintainability of the plea, and pass an order on June 26.
“The writ petition is about rights of the petitioners. The petitioners have been wearing hijab in the college for two years. What happened suddenly and why is the ban suddenly imposed now? This is a violation of Article 19, 21 and Puttaswamy judgment about the right to privacy. Here the prejudice is happening to the students. The instructions by the college say, for girls, it is Indian or western non-revealing dress. Hijab and niqab are non-revealing and are very much Indian. I cannot find any theme in the instructions. It is absurd to say Indian dresses are not allowed but western dresses are allowed. This directive is nothing but colourable exercise of power,” advocate Altaf Khan argued, appearing for the petitioners.
Appearing for the institution, senior counsel Anil Anturkar maintained that the dress code applied to all students and was not just meant for one religion. “This is not an order against Muslims alone 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 judgment that says prima facie that hijab is essential? The idea is not that you should not wear it. The idea is that you should not show it openly, unless it is part of fundamental right to religion, such as wearing a turban for Sikhs. This is so that students need not openly roam around disclosing their religion. People come to college to study. Let the students do that and focus only on that, and leave everything else outside,” Mr. Anturkar said.
