SC stays Mumbai college circular, questions selective religious restrictions
A bench of justices Sanjiv Khanna and PV Sanjay Kumar remained unequivocal in its disapproval of the college’s actions, putting in abeyance the instruction
The Supreme Court on Friday stayed a controversial circular issued by a private college in Mumbai that banned the wearing of hijab, burqa, caps and similar attire on its campus, condemning the college’s attempt to impose a dress code based on religious markers and questioning the selective nature of the ban.
Delivering strong remarks, a bench of justices Sanjiv Khanna and PV Sanjay Kumar remained unequivocal in its disapproval of the college’s actions, putting in abeyance the instruction issued by NG Acharya & DK Marathe College earlier this year.
“Issue notice in the matter, returnable in the week commencing November 18, 2024. Meanwhile, we stay clause 2 of the circular to the extent that it imposes a ban on hijab, burqa, caps, etc. We hope and trust this order won’t be misused by anyone,” stated the bench.
A group of college students approached the Supreme Court against a Bombay high court judgment on June 26 that upheld the ban.
Senior counsel Colin Gonsalves, representing the students, lamented that students have been stopped from attending classes even though they could wear hijab and similar attire in the last four years. “What is this? Don’t enforce such rules,” the bench began, setting the tone for a sharp exchange with the college’s lawyer, senior advocate Madhavi Divan.
The bench questioned the college’s justification for the ban, which Divan claimed to be an attempt to prevent the revelation of students’ religious identities. The bench responded pointedly: “Your argument is that you don’t want students’ religion to be revealed. Will you want them to be given numbers at the gates so that their names are not revealed?”
While Divan argued that the institution aimed to empower women by preventing them from wearing religious attire, the bench underlined that empowerment should not come at the cost of personal freedom. “Where’s the question of empowering women by imposing what you want them to wear? Less said the better... Where is the choice for the women?” the bench asked, stressing the importance of personal choice in matters of dress and religious expression.
The court also expressed its disappointment that students who opposed the ban felt compelled to leave the college. “That’s sad. That should not have happened. They must study together,” remarked the bench, reflecting its concern over the divisive impact of the circular.
The bench also pulled up the college for the selective nature of the ban, which targeted specific religious attire while apparently allowing others, like tilaks and bindis, to go unaddressed. “Did you say someone wearing a tilak won’t be allowed? You haven’t said no bindi. Your instructions are not talking about them,” the bench told Divan, who contended that niqab and hijab were barriers to education.
The court criticised the college for suddenly realising, after years of operation, the religious diversity in the country. “It’s unfortunate you have come out with these kinds of instructions. After so many years of independence, you have come to realise there are different religions in this country. This college was set up in 2008. And now you realise there are different religions,” it said.
Divan, on her part, pointed out that as many as 441 Muslim girls are attending college without hijab or niqab and that only three girls had issues. She added that the college does not want to become either a ground to propagate political activities or religious activities because some other students might start wearing saffron shawls or something else.
But the bench highlighted the peril of issuing an instruction imposing a dress code. “Why issue a circular of this nature? If three of them want to dress differently, let them do so. Maybe, they will realise later they don’t need it...a lot of what you are arguing has a solution in education,” it said.
Issuing an interim order, the court stayed the implementation of the circular’s clause that imposed the ban on religious attire, pending further hearings. Notably, the court’s decision not only offers immediate relief to the students affected by the ban but also sets a precedent for the protection of individual rights against arbitrary institutional policies.
The Supreme Court’s strong remarks and interim order reflect its commitment to upholding personal freedoms and preventing discriminatory practices in educational institutions. The case is set to continue, with broader implications for the balance between institutional autonomy and individual rights in India.
On June 26, a Bombay high court refused to entertain the students’ plea against the college’s circular, stating that the dress code’s enforcement was limited to the college premises and did not otherwise affect the petitioners’ freedom of choice and expression.
Following the high court’s decision, the students appealed to the Supreme Court, arguing that the dress code and restrictions on wearing hijab, niqab, burqa, and other religious attire on campus violate their fundamental rights. The petitioners contended that the dress code, which mandates that students’ attire be formal, decent, and not indicative of any religion, is arbitrary and discriminatory. They maintained that the college’s order infringes on their right to choose their attire, their right to privacy, and their freedom of expression under Article 19(1)(a), as well as their right to freedom of religion under Article 25 of the Constitution.
At the core of the dispute is the clash between the restriction, state-mandated or otherwise, on religious attire in educational institutions on the ground of maintaining public order and uniformity, and the constitutional rights of individuals to freely exercise their religious beliefs and free speech and expression – a larger issue still to be decisively determined by the Supreme Court.
In October 2022, the Supreme Court delivered a split verdict on the ban on wearing of the hijab in educational institutions in Karnataka with one judge affirming that the state government is authorised to enforce a uniform in schools and the other calling the hijab a matter of choice that cannot be stifled by the state.
Justice Hemant Gupta (since retired), in his judgment, had dismissed all the appeals filed against the Karnataka high court judgment, which held in March that wearing of the hijab by Muslim women is not mandatory in Islam and that the Karnataka government was empowered to enforce the uniform mandate.
However, Justice Sudhanshu Dhulia had at that time differed from the senior judge on the bench and allowed all the appeals. Reading out the operative part of his judgment, Justice Dhulia said that wearing the hijab is a matter of choice for a Muslim girl and there cannot be any restriction against it. Quashing the state government’s prohibitory notification, Justice Dhulia added that concerns regarding the education of a girl child weighed the most on his mind and the ban on the hijab would certainly come in the way of making her life better.
In view of the dissenting views, the matter was referred to the CJI for constituting an appropriate bench. The larger bench, however, remains to be notified.
The extensive hearing in the Karnataka case witnessed almost two dozen senior lawyers arguing over a spectrum of issues on behalf of female students, Islamic bodies, rights groups, lawyers, and activists. The petitioners, challenging the Karnataka high court order affirming the ban, covered in their arguments the right to practice religion, freedom to dress as a matter of expression and identity, right to access education, and alleged unreasonableness of the state’s mandate.
The Karnataka government countered the petitioners, maintaining throughout the proceedings that their circular to enforce the uniform was religion-neutral and aimed only at promoting uniformity and discipline in educational institutions of the state.