SC stays Mumbai college circular banning 'hijab, burqa, cap and naqab'

The Supreme Court on Friday stayed a Mumbai college's decision banning 'hijab, burqa, cap and naqab' on the campus, and said girl students must have the freedom to choose what they wear.

A bench of justices Sanjiv Khanna and Sanjay Kumar came down heavily on the Chembur Trombay Education Society, which runs the N.G. Acharya and D.K. Marathe College for issuing such a circular and asked whether it would ban bindi and tilak also.

During the hearing, Justice Kumar asked senior advocate Madhavi Divan, appearing for the society, how the college was empowering girl students by issuing such a circular.

"How are you empowering women by telling them what to wear? I think it's less said the better. Where is the freedom of choice for the women? Where is freedom of choice of what to wear to the girl students? Educational institutions should not force their decisions on the girl students on what to wear," justice Kumar said.

Divan contended that the college is a co-educational institution and the intention behind the directive is to ensure that the religious faiths of the students are not revealed. The lawyer said the circular was not limited to 'hijab, burqa or naqab' but extended to even ripped jeans and other such attire.

Unimpressed, justice Khanna asked "Will the students' names not reveal their religious identity? Religion is in their names also. Do not impose such rules."

Justice Kumar further observed, "You have suddenly woken up to the fact that they are wearing it and come out with instructions. It is unfortunate. After so many years of Independence, you have come to know there are so many religions in this country."

The bench issued notice to the education society and sought its response by 18 November.

"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 in the campus. We hope and trust this interim order is not misused by anybody," the bench ordered. It granted liberty to the educational society and the college to approach the court in case of any misuse of the order.

Senior advocate Colin Gonsalves and advocate Abiha Zaidi, appearing for the petitioners, including Zainab Abdul Qayyum, submitted that students were not able to attend the classes owing to the circular. The girl students have been wearing hijab for the past four years, Gonsalves said, adding that now they are being stopped from attending the classes.

Divan submitted there are 441 girl students from the Muslim community who are happily studying in the college and they are given lockers and to keep their burqa or hijab. "None of the 441 girls had any problem except for these three girls, who approached the high court against the circular," she said.

"You may be correct as many of them come from different backgrounds. Maybe family members of some could ask them to wear it or they wear it (of their own accord). But let all of them study together. Don't implement these rules," the court told the lawyer.

Justice Khanna told her, "You cannot make it like this. Solution to a lot of this is proper, good education. Yes, you may be right that no burqa can be allowed to be worn by girls inside the classroom and no religious activities can be permitted on the campus."

Informing the court that the college has been in existence since 2008 and functioning without any government aid, Diwan said if the institution allows hijab and naqab to worn by particular students, how will it prevent others from coming wearing saffron shawls and other attire symbolic of their religious identity.

"We are a non-political, religion-neutral school. We only wanted that wearing hijab or naqab does not become a barrier for students in interaction," she submitted, urging the court to not take away its autonomy.

Justice Khanna said the larger issue of allowing hijab in educational institutions is pending consideration before a larger bench. The top court was hearing a plea challenging a Bombay High Court verdict upholding the college's decision to ban hijab, burqa and naqab inside the campus.

The high court on 26 June refused to interfere with the decision of the N.G. Acharya and D.K. Marathe College imposing the ban, saying such rules do not violate the fundamental rights of students. It said a dress code is meant to maintain discipline and is a part of the college's fundamental right to "establish and administer an educational institution".

The top court is yet to conclusively decide the legality of such diktats issued by educational institutions.

On 13 October 2022, a two-judge bench of the apex court delivered opposing verdicts in the hijab controversy emanating from Karnataka. The then BJP-led state government had imposed a ban on wearing the Islamic head covering in schools there.

While justice Hemant Gupta, since retired, dismissed the appeals challenging the judgement of the Karnataka High Court refusing to lift the ban, justice Sudhanshu Dhulia held there shall be no restriction on wearing hijab anywhere in schools and colleges of the state.

The top court is yet to constitute a larger bench to decide the Karnataka hijab row. The Mumbai college's decision has again put the spotlight on the hugely divisive issue.