Apex Court Refuses To Stay Ban On Burkha And Naqab By Mumbai College; Stays Ban On Hijab, Cap & Badge, Asks Not To Misuse Stay

The Bench of Justice Sanjiv Khanna and Justice Sanjay Kumar said, "We are partly staying Clause 2 of the impugned circular, to the extent that it directs that No Hijab, Cap or Badges will be worn."

"We hope and trust that the said interim order will not be misused by anybody. It will be open for the respondent to move an application in case of misuse/vacation of the said interim order," the Bench added. 

Senior Advocate Colin Gonsalves, appearing for the petitioners, submitted that these students have been stopped and can't attend classes. He also submitted that the girls have been wearing the hijab for four years. 

On perusal of the impugned circular, Justice Khanna said, "What is this? They will not reveal their religion? Religion is revealed by the name and other things."

Senior Advocate Madhavi Divan, appearing for the Mumbai College, contended that they are just a private, unaided institution. 

The Bench asked the College to not impose such a rule. 

Justice Kumar asked the Senior Counsel appearing for the college, "Will their names not reveal, their religion? Will you ask them to give numbers at the gates? So that they are not addressed by names?"

Justice Khanna then said that the issue is pending before the Apex Court (Karnataka Hijab ban).

Divan informed the Bench that many girls have gone to another college.

To this, Justice Khanna said, "That is sad. Let me put it this way, they must study together."

Divan submitted, "We have 441 girls from this community. In a private, un-aided school there is a barrier that is created, if a girl is wearing a niqab, these are co-educations. We are providing them lockers, if they feel comfortable, they can come into college like that, that's fine. We will provide you with a changing room."

Justice Khanna said, "You may somewhat right, because the background they belong to.. the family members may say- you please wear and go.."

Divan argued they are claiming a right to wear naqab. She contended that they had not been wearing it always. 

Justice Kumar said, "Where is the question of you, empowering women by imposing your dress code on them?... Ms. Divan, the less said the better."

Divan contended, "Tomorrow we will have people covered in saffron shawl and all of that. We don't want, we are not a political playground. We are not a religious playground."

To this, the Bench asked the Senior Counsel, "Since when has this college been in existence?"

Divan replied, "2008".

Justice Kumar said, "Suddenly, you have woken up to the fact that there are different religions in the country."

Divan told the Bench that most of these ladies have already joined another college. "There are only three.."

Calling it "sad", Justice Khanna said, "If they have done that's sad. I hope they are not going to a particular college where they are.."

The Senior Counsel informed the Court that the girls that have left the college are going to a good mainstream college. 

"It is unfortunate that you come up with these kinds of instructions after so many years of independence. Suddenly, you realise that there is religion in this country,..Since 2008 till now you had no difficulties?" Justice Kumar remarked. 

Calling "naqab" a barrier to interaction, Divan argued that it is for the institution to decide its ethos. She further informed the Bench that the petitioners first went to the media with the petition and then came to Court. 

Justice Khanna said, "That is wrong, that should not have been done. You file a petition but you go to the media first. That's not acceptable...Looks like one is a issue involved and one is publicity. "

Divan informed the Court that 441 Muslim girls are happily attending college. "Only these three girls have a problem," she argued. She contended that the institution is a very neutral one. 

Justice Khanna asked the Senior Counsel, "Did you say that a person wearing a tilak will not be allowed? Certainly not."

"It will not be allowed," Divan contended. 

Justice Kumar said that it is not part of the instructions. "You have not said no bindi," the Bench pointed out.

The Bench ordered, "Issue notice, returnable in the week commencing November 18, 2024...Meanwhile, we partly stay Clause 2 of the impugned circular to the extent that it directs that no Hijab, Cap or Badges will be worn."

On August 5, the Court had said that it had ordered listing of a plea challenging the verdict of the Bombay High Court, which had upheld a decision of a Mumbai college to impose a ban on wearing of 'hijab', 'burqa' and 'naqab' inside the campus. Taking note of the submission seeking urgent listing of the appeal, a Bench headed by Chief Justice D Y Chandrachud had said it had already assigned a bench for the matter and that it would be listed soon. Advocate 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 (Aug 7).

A two-judge bench of the Apex 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 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 years of the science degree course, had moved to 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 the 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 High Court had said.

The 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 High Court 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 practice any profession or run trade/business) and Article 26 of the Constitution, the High Court 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.