SC to hear plea challenging Bombay High Court's verdict on hijab ban

New Delhi: The Supreme Court has scheduled the hearing of a plea challenging the Bombay High Court's verdict, which upheld a Mumbai college's decision to ban the wearing of 'hijab', 'burqa', and 'niqab' within its campus.

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

Taking note of submission seeking urgent listing of the appeal, a bench comprising Chief Justice D Y Chandrachud and Justices JB Pardiwala and Manoj Misra said it has already assigned a bench for the matter and that it would be listed soon. Lawyer Abiha Zaidi, appearing for petitioners, including Zainab Abdul Qayyum, sought urgent hearing saying the unit tests in the college are likely to commence on Wednesday.

The top court is yet to conclusively decide the legality of such diktats issued by educational institutions. A two-judge bench of the top court, on October 13, 2022, had 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, had dismissed the appeals challenging the judgement of the Karnataka High Court which had refused to lift the ban, Justice Sudhanshu Dhulia had held there shall be no restriction on the wearing of hijab anywhere in the schools and colleges of the state.

The present controversy stems from the decision of a Mumbai college. The Bombay High Court trashed the plea against the ban and said the dress code was applicable to all students irrespective of religion or caste.

The students, who were in the second and third year of the science degree course, had moved the high court, challenging a directive issued by the college imposing a dress code under which students cannot wear a hijab, naqab, burka, stoles, caps and badges on the premises.

The students had claimed it was against their fundamental right to practice religion, the right to privacy and right to choice. The college's action was "arbitrary, unreasonable, bad-in-law and perverse", the plea had said.

The high court, however, had said it could not see how the prescription of dress code by the college violated Articles 19(1)(a) (freedom of speech and expression) and 25 (freedom to practice religion) of the Constitution.

"In our view, the dress code as prescribed cannot be held to violate the petitioners' rights claimed under Article 19(1) (a) and Article 25 of the Constitution of India," the HC had said.

The high court had also refused to accept the petitioners' contention that wearing a hijab, naqab and burqa was an essential practice of their religion.

"Except for stating that the same constitutes an essential religious practice on the basis of the English translation of Kanz-ul-Iman and Suman Abu Dawud, there is no material placed to uphold the petitioners' contention that donning of hijab and naqab is an essential religious practice. The contention in that regard, therefore, fails," the HC had said.

Prescribing a dress code should be seen as an "exercise towards maintaining discipline", and the right to do so flows from the fundamental right to establish and administer an educational institution under Article 19(1)(g) (right to practise any profession or run trade/business) and Article 26 of the Constitution, the HC had said.

The dress code was mandatory only within the college premises and the petitioners' freedom of choice and expression was not otherwise affected, it had said.

Input from PTI