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:

Related:

Quoting Tagore, the Madras High Court flags misuse of preventive detention laws to censor critical social media posts

Telangana High Court affirms right of Akbhari Shia Women to conduct religious activities in Hyderabad’s Ibadat Khana

Redefining Indian Tradition Minus Christianity & Islam is Intellectual Dishonesty

The post “How does dictating attire empower women?” Supreme Court partially stays Mumbai College’s Hijab Ban appeared first on SabrangIndia.

This follows last year’s implementation of a uniform policy for junior college students by the college, which also prohibited burqas and hijabs on campus in August 2023. The dress code now introduced by the college is said to be implemented from the new academic year. It also instructs students that if they are wearing any of the prohibited items, then they will be given a common room in the college on the ground floor to remove them. 

A student was seen telling the media that Muslims were specifically told on a WhatsApp group that from now onwards hijab, burqa, and even kurta-pyjama (for men) would not be allowed in the college. The student also told the media that no official notice has been given as of yet. 

#Mumbai: Students of the Acharya Marathe College Chembur #HijabBan pic.twitter.com/FnXdIebpER

— Saba Khan (@ItsKhan_Saba) May 16, 2024

As per a report, over thirty students have submitted a letter to the college, urging it to reconsider the dress code. They also approached national and state human rights commissions to challenge the policy as they say the order violates their right to choose as well as the right to religion guaranteed by the constitution. 

As per a report in the Hindustan Times, when a resident activist spoke to the college administration informing them that the ban on the burqa will deter Muslim women students from attending college, the college responded that the burqa is a ‘barrier’ to education. 

In response to the outrage, the college has staunchly defended the dress code by stating that it aims to increase campus placements and promote ‘etiquette’ among students by encouraging them to dress in ‘decent’ outfits. The newspaper contacted the college’s principal who responded that she cannot comment right now. 

Subodh Acharya who is general secretary of the college’s governing council and a Shiv Sena leader told Free Press Journal, that it was a question of the students’ ‘future’, “We want to increase college placements. If the students go to seek jobs in burqa, will they be considered? Students should be imbibed with values and etiquette – how to live and behave in society,”

In August, 2023, a similar ban was issued by the junior college at the same institute. Young Muslim students who sought to come to study and observe their religion by wearing the burqa or hijab were banned from entering the college premises. The college administration had also promised disciplinary action against them. 

In 2022, after a government order, the Karnataka government, led by the BJP, had banned the hijabs in government colleges across the state. The ban came after hijab wearing students were denied entry into classes at a pre-university college in Udupi in December 2021. After this incident, demands to ban hijab were made by students from the ABVP. This had led to over 1000 Muslim women students being forced to drop out from the college, according to a ground report. To this day, despite the change in government, the ban still remains. Furthermore, the newly elected Rajasthan government led by the BJP has also seemed to be toying with the idea of hijab ban. Recently, hijab wearing students were called “chambal ke daaku” by their teachers and were prevented from entering the school premises in the state after a video of the students went viral. 

Related

Spewing hate, slurring Muslims: an unchecked decade-long diatribe by Bharatiya Janata Party?

Rajasthan: Muslim students barred from school, called ‘Chambal ke Daaku’ for wearing hijab

Karnataka: Muslim girl asked to not wear hijab to school, after students protested wearing saffron shawls

Removing Hijab ban is a step forward, for gender justice & pluralism

Muslim student denied to sit for UGC-NET due to hijab

The post Mumbai college bans hijab, demands students wear ‘decent’ clothes appeared first on SabrangIndia.