Hijab row: Mumbai students challenge college dress code Supreme Court verdict looms large: Will Muslim women have the right to wear hijab in classrooms?
18, Jun 2024 | CJP Team
In a significant legal battle over hijab yet again, nine students from Mumbai’s NG Acharya and DK Marathe College of Art, Science, and Commerce have approached the Bombay High Court. They are challenging a newly implemented dress code by the college authorities, which prohibits the wearing of the hijab on campus. These students, who are in their second and third years of B.Sc and B.Sc (Computer Science) programs, argue that the dress code violates their fundamental rights to privacy, dignity, and religious freedom.
The petition, filed through advocate Altaf Khan, is set to be heard by a division bench. According to the petitioners, all female students, they have been wearing the niqab and hijab for several years, both inside and outside the college. The college recently issued an undated notice titled “Instruction for Student” on its website and through a WhatsApp message, mandating a dress code that explicitly forbids the wearing of burkha, niqab, hijab, caps, badges, and stoles. The petitioners argue that these instructions are illegal, arbitrary, and unreasonable. They contend that such directives are not supported by any statutory authority and infringe upon their rights guaranteed under Articles 14, 19, 21, 25, 26, and 29 of the Constitution of India.
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The students’ petition also highlights that the college, being affiliated with the University of Mumbai and receiving state aid, lacks the authority to impose such restrictions on attire. 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.
The petitioners also reference Quranic verses and Hadith, asserting that wearing the niqab or hijab is an essential religious practice and a symbolic expression of their faith. They state that the restrictions do not align with the National Policy on Higher Education and the Rashtriya Uchchatar Shikshan Abhiyan (RUSA), which aim to promote access and equity in higher education for disadvantaged groups, including women and minorities. The petition argues that the dress restrictions breach the college’s own Policy on Code of Ethics, which promotes equality and respect for all students. “Petitioners ought not have subjected to have excessive moral policing and insistence of dress code,” the petition adds.
The petitioners claim that the imposed dress code violates their rights to privacy, freedom of expression, and religious practice. They assert that the niqab and hijab are integral to their religious beliefs and personal identity, and the college’s actions amount to an infringement on their bodily autonomy and personal choice. The petition further states that the college’s direction for “formal and decent dress” indirectly categorizes hijab and burkha as indecent.
The petition states that on May 13, 2024, the petitioners attempted to discuss their concerns with the college management and the principal, seeking the withdrawal of the dress code restrictions, but their efforts were unsuccessful. They have approached various authorities, including the Chancellor, Vice-Chancellor of the University of Mumbai, University Grants Commission (UGC), Ministry of Higher and Technical Education, and the Ministry of Education, requesting intervention and withdrawal of the dress code, but have received no response.
With the academic year set to commence on June 12, 2024, the petitioners argue that the case is urgent as the dress code will prevent them from attending classes and pursuing their studies, thereby necessitating immediate judicial intervention. They are seeking the quashing of the undated notice and the WhatsApp message dated May 1, 2024, imposing the dress code and a declaration that the restrictions on wearing a niqab, burka, and hijab are unconstitutional and not binding on them. The petitioners have also sought an interim stay on the notice till the pendency of the petition.
The background
The issue of the “hijab ban” remains a pressing concern, as the struggle for Muslim women continues to intensify with different states now imposing similar restrictions. The controversy began in Karnataka, setting a worrying precedent that is spreading across the country.
The controversy over wearing hijab in educational institutions in India came to the fore in January 2022, when some Muslim women students at a government pre-university college in Udupi, Karnataka, were barred from wearing the hijab on campus. The college administration cited Karnataka government guidelines to ensure uniformity among students.
Six students who protested this policy were suspended on January 2nd. Subsequently, on January 26th, 2022, the Karnataka government set up an expert committee to find a solution to the issue. On January 31st, one of the students filed a petition at the Karnataka High Court challenging the ban.
On February 5th, the Karnataka government issued an order under the Karnataka Education Act, 1983, prescribing a uniform for all students in state-run educational institutions, effectively banning the hijab inside classrooms.
This order was challenged at the Karnataka High Court on February 7th, prompting Chief Minister Basavaraj Bommai to order the closure of all schools and colleges for three days while the court heard the matter.
On February 10th, the Karnataka High Court delivered an interim order allowing the schools and colleges to reopen but permitting the hijab ban to continue while the case was still being heard. The hearings were completed on February 25th, and the order was reserved.
On March 15th, the three-judge bench of the Karnataka High Court upheld the hijab ban in state educational institutions. The court held that wearing the hijab was not an ‘essential religious practice’ and therefore did not receive constitutional protection.
Furthermore, the court ruled that the ban did not violate the students’ right to freedom of speech and expression, as it was a reasonable restriction to maintain discipline in public spaces. On the same day, the All-India Muslim Personal Law Board filed an appeal against the Karnataka High Court decision at the Supreme Court.
Despite the immediate filing of the appeal, the Supreme Court did not hear the case for over five months, until August 29th, 2022. During this period, lawyers representing the petitioners repeatedly approached former Chief Justice Ramana’s bench, requesting that the case be heard urgently, given the impending board exams in Karnataka. However, the case was finally listed before a bench comprising Justices H. Gupta and S. Dhulia on August 29, after multiple requests.
Substantial arguments in the case began on September 5, 2022 and concluded on September 21. The hearings covered a wide range of issues, including the right to equality and non-discrimination, liberty and dignity, education, and religion. The bench also discussed whether the case should be referred to a five-judge constitutional bench to decide the scope of the ‘Essential Religious Practices’ (ERP) test, though all parties and the judges agreed that the ERP test did not significantly impact this case.
On October 13, 2022, the bench delivered a split verdict. Justice Hemant Gupta upheld the ban, stating that it applied equally to students of all religious communities and that the restrictions were reasonable to maintain discipline and unity in secular schools. Justice Sudhanshu Dhulia, however, found the ban unconstitutional, emphasizing the detrimental impact on girl children’s access to education and arguing that the ban imposed an additional burden on them. He stressed that the belief in wearing the hijab was sincere and should be reasonably accommodated.
Conclusion
This case isn’t merely about a headscarf; it’s a potent symbol that transcends individual expression and touches upon the very core of India’s identity as a secular nation. A delay in justice here translates to the continued marginalization of Muslim women, potentially jeopardizing their educational opportunities and fostering a climate of alienation.The Supreme Court’s intervention is paramount at this critical juncture. The Karnataka High Court’s split decision and the ongoing legal battles in Mumbai highlight the need for a definitive judgment on the hijab issue.
A judgment that upholds the right of Muslim women to wear the hijab in educational institutions would be a resounding victory for religious freedom and inclusivity. It would resonate far beyond the courtroom walls, sending a clear message that India’s secularism is not just a lofty principle enshrined in the Constitution, but a vibrant tapestry woven from the threads of tolerance and respect for diverse faiths. This verdict has the potential to become a beacon of hope, not just for Muslim women seeking an education, but for all those who cherish the ideals of a pluralistic society.
Image: Representational Image
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