On Friday (August 9, 2024), the Supreme Court will hear an appeal that contests a Bombay High Court judgment that upheld a Mumbai college’s prohibition on hijabs, burqas and naqabs within its premises.
Following the submissions of one counsel who told the court that this day was the start of term exams with instructions to follow a dress code; Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra listened carefully to these submissions yesterday (August 8, 2024).
The lawyer representing the petitioners is Abiha Zaidi, among them Zainab Abdul Qayyum; she asked for an immediate hearing because unit tests were starting.
“It’s coming up tomorrow [on August 9]. I have already listed it,” stated the CJI.
This ban by Chembur Trombay Education Society’s N.G. Acharya and D.K. Marathe College has been ruled upon by The Mumbai High Court on June 26th as not being in breach of students’ fundamental rights.
In other words, high school dress codes are designed to put certain preventive measures into place so as to maintain orderliness in schools and hence are also part of the institutional rights that enable colleges “to establish and manage educational institutions.”
Thus, there is yet no unanimous decision from India’s supreme adjudication authority concerning whether such orders may be enforceable or not.
An Islamic head covering controversy originating from Karnataka was resolved through divergent judgments from two judges sitting on October 13, 2022 at which time they delivered different verdicts before Hemant Gupta retired; then BJP-led State Government had prohibited schools therefrom wearing the religious clothing.
Sudhanshu Dhulia J., however opined differently holding that Hijab must be allowed to be worn anywhere in any school or college across Karnataka while dismissing all appeals challenging the Karnataka High Court’s decision.
Until today, the Supreme Court has not constituted a larger bench to resolve the Karnataka hijab controversy.
Once again, this decision by a college in Mumbai has raised much attention on the issue.
The Bombay High Court rejected a petition against the prohibition explaining that it was applicable to all without any regard for their religious or caste affiliations.
Consequently, there were some students who were part of science degree program as second and third-year students in particular who approached the High Court when they challenged school’s directive that had introduced dress code banning hijabs, naqabs, burqas, stoles, caps and badges from being worn within its premises
The students claimed it violated their right to freedom of worship, privacy right and freedom of choice. The college’s act was thus “arbitrary” and an “improper application of law”, according to the claim.
However, the constitutional validity of such dress codes prescribed by colleges has not yet been determined by any higher court since they do not violate articles 19(1)(a) (freedom of speech and expression) as well as 25 (freedom to practice religion) contained in Indian Constitution.
Furthermore, The high court also held that wearing hijab is no way connected with practicing Islam according to them which meant chanting prayers at home because they did not see how this infringed on their rights guaranteed under Article 19(1)(a) (right to free speech and expression).
“In fact other than claiming that this is one custom practiced within his religion based upon Kanz-ul-Iman translated into English language or Suman Abu Dawud; nothing at all is submitted showing that wearing Hijab/naqab/burqa forms integral part of religious practices,” held by HC while dismissing petitions made thereof.
“Inside the college premises, dress code was a must but it did not affect the petitioners’ freedom of choice and expression,” it said.
