On August 10, many women of Chembur’s Acharya Marathe College, both students and teachers, were able to return to the campus after the Supreme Court of India partially stayed the instruction issued by the college in Mumbai banning the wearing of hijab, cap or badges by students on campus. On August 9, a Supreme Court bench of Justices Sanjiv Khanna and Sanjay Kumar passed the said interim order while hearing a petition filed by three Muslim women students of NG Acharya and DK Marathe College of Mumbai against the said imposition of ban. Notably, the petitioners had approached the Supreme Court challenging the Bombay High Court’s judgment which upheld the college’s restriction on “religious dresses”.
While issuing the order of the partial stay, the bench slammed the authorities of the private college established in the year 2008, by stating that women must have freedom of choice in what they are wearing and college cannot force them. Coming to the argument of empowering women by banning hijab, naqab, and burqa, the bench had commented “How are you empowering women by telling them what to wear?”
The bench had also remarked why the college did not ban ’tilak’ and ‘bindi’ if it intended the religious faiths of the students to not be revealed. It had further asked if the religion and religious identity of the student would not be revealed by their name.
It is to be noted that pursuant to the interim order of the Supreme Court, Chembur’s Acharya Marathe College has complied with the orders by temporarily removing the ban on hijabs while continued to prohibit the niqab and burqa, the face covering and full-body veil respectively, in keeping with the said decision.
Background of the case:
The petitioners in the present case, pursuing their second and third-year undergraduate courses, had moved the Bombay High Court first by challenging the dress code on the ground that restriction on hijab, nakab, burqa, 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 contend that the dress code is arbitrary and discriminatory, infringing upon their right to choose their attire, right to privacy, right to expression under Article 19(1)(a) and right to freedom of religion under Article 25 of the Constitution.
They argue that the college’s actions are discriminatory and violate the principles of equity and inclusiveness mandated by the Maharashtra Public Universities Act, UGC guidelines, RUSA guidelines, and the National Education Policy (NEP). According to the petition, the college’s actions intend to exclude the petitioners from pursuing higher education and discriminate against them compared to other students, akin to denying them admission.
It is essential to note on June 26, 2024, the division bench of Justice AS Chandurkar and Justice Rajesh S Patil had delivered a judgment on the said case by observing that the dress code prohibiting students from wearing hijab, nakab, burqa, stole and cap on the campus is in the student’s larger academic interest. The court had 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. In the said judgment, the court had even gone 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. (A detailed analysis of the case, the arguments presented and the judgment of the HC can be read here, here and here respectively.)\
It is crucial to be highlighted here that while the Bombay High Court had cited 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.
Details of the hearings:
During the hearing, the bench comprising Justices Khanna and Kumar scrutinized a college’s notification that prohibited students from wearing hijabs, caps, or badges on campus. Expressing astonishment at the rule, Justice Khanna questioned its intent, stating, “Why enforce such a regulation that hides one’s religion?”
As per LiveLaw, Justice Kumar further critiqued, “Names themselves can indicate religious identity. Will students now be assigned numbers to avoid this?”
Senior Advocate Madhavi Divan, representing Acharya Marathe College, faced the bench’s scepticism. Justice Kumar lamented, “It’s disheartening that after decades of independence, such directives emerge… suddenly emphasising religion.”
Justice Khanna probed further, asking if traditional marks like a “tilak” would also be banned. Divan responded to the same by stating that out of 441 Muslim female students, only a few objected with most attending without issues. To this, Justice Khanna emphasised the importance of unity in education, remarking, “They must study together.”
As per a report in the LiveLaw, when it was brought to the notice of the Court that the three petitioning students had transferred to another institution and that hijabs weren’t traditionally worn in the college, Justice Khanna expressed regret, “That’s unfortunate… How does dictating attire empower women?” Justice Kumar echoed this sentiment, querying, “Shouldn’t the choice of clothing rest with the individual girl?”
Justice Khanna also underscored the societal pressures students might face, suggesting, “Authorities should recognize that family expectations might compel students to wear certain attire.” He then added, “Don’t force them out of the college. We’ll suspend the circular… Quality education is the remedy to many such issues.”
While Divan argued against a broad suspension, citing that face-covering veils like niqabs or burqas hinder interaction, the bench concurred, allowing the college to maintain its restriction on face coverings in the form of niqabs and burqa in class.
Order of the Court:
The court issued a notice on the petition, set to be revisited in the week starting November 18, 2024. The order included a caveat ensuring the suspension of the clause 2 of the circular, which banned hijab, cap or badge is not exploited, and it permitted the college to request modifications should any misuse arise.
“In the meanwhile, we partly stay clause 2 of the impugned circular to the extent it directs that no Hijab, Cap or Badge will be worn. We hope and trust that the said interim order will not be misused by anybody. It will be open to the respondents to move an application for vacation of this order, in case of misuse.”
The complete order can be read here:
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