During the hearing before the Supreme Court of the SLP against the Bombay High Court's Judgment upholding the ban by a College on wearing of hijab, among other things, Justice Sanjiv Khanna remarked that there court be pressure by families upon girl students to wear hijab and not to take it off. However, Justice Sanjay Kumar immediately expressed a contrary view, saying that the College is preventing girl students from wearing what they want to wear.

While defending a circular that was issued by a Mumbai College, imposing ban on wearing Burkha, Nakab, Hijab, Cap, Badge, Stole etc. Senior Advocate Madhavi Divan submitted before the Supreme Court that the institution is a private, unaided school and there is a barrier that is created if a girl is wearing a nikab.

"These are co-educations. We are providing them (girls) lockers, if they feel comfortable, they can come into college like that (wearing hijab etc), that's fine. We will provide you with a changing room, lockers," the Senior Counsel submitted.

To this submission, Justice Sanjiv Khanna said, "You may be right. You may be somewhat right, because of the backgrounds they belong to... the family members say you please wear (hijab) and go, and you please do not take off your hijab or whatever."

Further, the Senior Counsel pointed out that it is not just hijab, it's also nakab. She argued that the girls were not earlier insisting on wearing this.

"Should it not be left to the girl to decide what she wants to wear? Where is the question of you empowering women by imposing your dress code on them? Ms. Divan, the less said the better," Justice Sanjay Kumar then told the College.

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

After hearing the submission, the Bench proceeded to partially stay the impugned circular. The Bench ordered, "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."

It is to be noted that on June 26, the Bombay High Court had 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.

Pertinently, 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 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.

Cause Title: Zainab Abdul Qayyum Choudhary and Ors v. Chembur Trombay Education Society and Ors [Diary No. 34086 / 2024]

Justice Sanjiv KhannaJustice Sanjay KumarHijab Ban

Sukriti Mishra