Yet again, the freedom of religion and the right to choose what one wants to wear has been taken away by Muslim students of the colleges in Mumbai by the Bombay High Court. Nine students from Mumbai’s NG Acharya and DK Marathe College of Art, Science, and Commerce approached the Bombay High Court, challenging the newly implemented dress code by the college authorities, which prohibits the wearing of the hijab on campus. The arguments of the case took place on June 20, 2024 and the order was reserved and subsequently delivered on June 26, 2024. The case was heard by a division bench of Justice AS Chandurkar and Justice Rajesh S Patil. (A detailed analysis of the case and the arguments can be read here and here.)
Observations of the court
The Bombay High Court observed that the dress code prohibiting students from wearing hijab, nakab, burka, stole and cap on the campus is in the student’s larger academic interest.
The court referred to the case of Miss Fathema Hussain, a minor v. Bharat Education society and Ors., where in the Bombay High Court in 2003 held that, merely asking the students to maintain the dress code by not wearing a hijab does not violate the students’ fundamental right of freedom of conscience and free profession.
“Reference can be made to the judgment of the Coordinate Bench in Miss Fathema Hussain, a minor Vs. Bharat Education Society and Ors., AIR 2003 BOM 75, wherein a direction issued by the Principal of a High School to a girl student that she could not attend classes wearing head scarf was under challenge. On behalf of the student, it was urged that the direction issued by the Principal was violative of her fundamental right of freedom of conscience and professing, propagating and practicing Islam religion. Considering such challenge, it was held that by merely asking the student to maintain the dress code prescribed by the school, it could not be said that the student’s fundamental right of freedom of conscience and free profession, practice and propagation of religion was violated. There was no breach of the provisions of Article 25 of the Constitution of India” the court said.
The court referred to the infamous Karnataka High Court judgment wherein, a government order banned hijabs in schools and colleges across Karnataka, in this case it was held that this is not violation of Article 25 of the constitution of India.
“In its detailed judgment, the Full Bench held that prescribing such dress code did not result in violation of any fundamental rights as claimed under Article 19(1)(a) and Article 25 of the Constitution of India. It was held that the dress code when prescribed for all students was intended to treat them as one homogeneous class so as to serve constitutional secularism. The object of prescribing a uniform code would be defeated if there was non uniformity in the matter of uniforms”
“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” said the court.
The court then referred to the case of, Fatima Thanseem (Minor) and another vs. The State of Kerala and others, wherein the court held that an individual cannot seek imposition of his/her fundamental right as against the larger right of the educational institution.
“We may also note that a similar challenge to prescription of dress code by which head scarf and full sleeve shirt prescribed for girl students was the subject matter of challenge before the Kerala High Court in Fatima Thanseem (Minor) and another vs. The State of Kerala and others, (2019) 1 KLT 208. It was held that though there may be a fundamental right for a student to choose a dress of his/her own choice, there was also a fundamental right of establishing, managing and administering an educational institution. Between competing rights, an individual could not seek imposition of his/her fundamental right as against the larger right of the educational institution. On this premise, the challenge was turned down”
The court went on to say that regulation of a dress code is an exercise towards maintaining discipline at the Institution, and this right flows from Article 19(1)(g) and Article 26 of the Constitution of India.
The court then held that, prescription of the dress code by the college does not offend the provisions of Article 19(1)(a) and Article 25 of the Constitution of India.
“We do not find as to how the prescription of the dress code by the College offends the provisions of Article 19(1)(a) and Article 25 of the Constitution of India. 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 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.
The order of the court can be read here:
Conclusion
The Bombay High Court’s decision upholding the hijab ban in colleges is a miscarriage of justice. While the court argues that the dress code is in students’ best interests and promotes uniformity, it fails to consider the fundamental right to freedom of religion and expression.
The court cites previous rulings where dress codes were upheld. However, these cases involved schools and uniforms. A dress code is different from a uniform. In this case, what the court has failed to take note of is that, the dress code is disproportionately affecting only female Muslim students of the college.
Further, the court argues that the dress code promotes secularism. However, secularism does not require the erasure of religious identity. Ultimately, the court’s decision forces women to choose between education and religious practice, this is a violation of their fundamental rights and a gross miscarriage of justice.
Related:
Nine Muslim students petition Bombay HC, college’s ban on hijab violates fundamental rights
Students challenge Hijab ban, college defends secular dress code – Bombay HC to rule on June 26th
Hijab ban case: K’taka HC concludes hearing, reserves judgement
Hijab ban case: Hijab in line with freedom of expression, submits petitioner