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We are not inclined to interfere: Bombay High Court dismisses plea challenging hijab ban imposed by a Mumbai college

The NG Acharya and DK Marathe College of Art, Science and Commerce stated that the dress code banning hijab was for all students belonging to every religion and caste.

On 26th June, the Bombay High Court rejected an appeal from nine female students contesting a Mumbai college’s dress code, which forbade students from wearing Islamic headgear, stoles, burqas, hijabs and other items on campus. The students who are enrolled in second and third-year B.Sc. and B.Sc. (Computer Science) courses of NG Acharya and DK Marathe College filed a petition against the institution, but it was dismissed by a division bench of Justices A S Chandurkar and Rajesh Patil, who stated that they were not inclined to interfere with the decision taken by the educational institution.

They submitted a petition to the High Court earlier this month, contesting a decision made by the NG Acharya and DK Marathe College of Art, Science and Commerce of the Chembur Trombay Education Society that enforced a dress code that barred students from entering the building with burqas, stoles, caps, badges or hijabs. The petitioners claimed that such a directive violated their fundamental rights of choice, privacy and practice of their religion. The plea termed the college’s action “arbitrary, unreasonable, bad-in-law and perverse” and charged that it was a “colourable exercise of power.” 

The college during the hearing last week asserted that the goal of the restriction is to prevent the display of religious symbols, with the exception of those that are considered to be an integral component of the basic right to practice one’s faith such as the turban worn by Sikhs. Senior counsel Anil Anturkar, on behalf of the college, clarified that the prohibition is for all religious symbols and does not specifically target Muslims. He underlined that, except in cases when they are required under the fundamental right to religion, the college’s policy bans the open display of religious symbols.

Altaf Khan, the petitioner’s attorney, presented specific Quranic verses to the High Court to bolster their argument that the hijab is a mandatory component of Islam. In addition to their right to freedom of religion, he alleged the petitioners were challenging the college’s decision by invoking their rights to privacy and choice. He alleged that this issue deals with older college students who have a dress code but not a uniform, setting it apart from the Karnataka High Court’s ruling on the hijab ban at junior institutions.

He contended that the dress code was implemented through WhatsApp without any legal foundation, drawing a comparison to the Karnataka case where a uniform policy that was already in place was enforced. He emphasized that the petitioners’ rights to autonomy, bodily integrity and choice have been breached by the dress code. Anil Anturkar pointed out that the rule did not apply only to Muslims but to all students as well and he urged the petitioners to provide evidence that the wearing of the hijab is a mandatory Islamic religious practice. He maintained that rather than wearing religious insignia, pupils need to concentrate on their studies.

He further stressed that when the petitioners applied for admission, they were aware of the dress code. He added that the college would also object if someone was to put on additional religious symbols in the future, for instance, a gada (mace) or bhagwa (saffron) outfit. The university’s legal representative questioned whether the writ petition could be upheld, noting that this case does not include a state instrumentality, in contrast to Karnataka, where a government decree outlawing the hijab was challenged.

Altaf Khan refuted the accusation of discord, stating that the petitioners had been donning hijabs for two years without causing any strife. He alleged that the ban is against Justice KS Puttaswamy’s verdict on the right to privacy as well as Articles 19 and 21. He declared that the case solely addresses the petitioners’ complaints and does not pertain to the general public interest. He remarked that there is no justification for the dress regulation and the hijab is also Indian. He mentioned that the dress code prevents students from Muslim, Scheduled Castes, Scheduled Tribes and Other Backward Class communities from having greater access to education by listing a number of rules and regulations.

The submission claimed that the petitioners have been using the hijab and niqab for a number of years, both inside and outside of the college. The institution recently published an updated notice titled “Instruction for Student” over a WhatsApp message and its website. The letter implemented a dress code that specifically prohibits the wearing of stoles, caps, badges, niqabs, burkhas and hijabs. The petitioners alleged that the directives undermine their rights provided by Articles 14, 19, 21, 25, 26, and 29 of the Indian Constitution and are unlawful, arbitrary and unreasonable. They also asserted that these instructions are not supported by any statutory authority.

The petitioners made their request to the college administration and principal on 13th May, asking them to lift the ban on the headscarf, burka, and hijab and permit them “as a matter of right of choice, dignity, and privacy in the classroom.” They also brought their grievance to the attention of the United Grant Commission, the University’s chancellor, and the vice-chancellor for support and urged them to step in and uphold an inclusive learning environment. They filed the case in the High Court after not getting a response to their complaints.

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