The
Supreme Court on Friday stayed a Mumbai college's decision banning 'hijab,
burqa, cap and naqab' on the campus and said girl students must have the
freedom to choose what they wear.
A
bench of Justices Sanjiv Khanna and Sanjay Kumar came down heavily on the
Chembur Trombay Education Society, which runs the 'N G Acharya and D K Marathe
College' for issuing such a circular and asked whether it would ban 'bindi' and
'tilak' also.
During the hearing,
Justice Kumar asked senior advocate Madhavi Divan, appearing for the society,
how was the college empowering the girl students by issuing such a circular.
"How are you empowering the women by telling them what to
wear? I think it's less said the better. Where is the freedom of choice for the
women? Where is freedom of choice of what to wear to the girl students?
Educational institutions should not force their decisions on the girl students
on what to wear," said Justice Kumar.
Divan contended that the college is a co-educational institution
and the intention behind the directive is to ensure that the religious faiths
of the students are not revealed. The lawyer said the circular was not limited
to 'hijab, burqa or naqab' but extended to even ripped jeans and other such
attire.
Unimpressed, Justice
Khanna asked "Will the students' names not reveal their religious
identity? and added "Religion is in their names also. Do not impose such
rules."
Justice Kumar further
observed, "You have suddenly woken up to the fact that they are wearing it
and come out with instructions. It is unfortunate. After so many years of
Independence, you have come to know there are so many religions in this
country."
The bench issued notice
to the education society and sought its response by November 18.
"We partly stay
clause 2 of the impugned circular to the extent that it directs that no hijab,
no cap, no badges will be allowed in the campus. We hope and trust this interim
order is not misused by anybody," the bench ordered.
It
granted liberty to the educational society and the college to approach the
court in case of any misuse of the order.
Senior
advocate Colin Gonsalves and advocate Abiha Zaidi, appearing for the
petitioners, including Zainab Abdul Qayyum, submitted that students were not
able to attend the classes due to the circular.
The
girl students have been wearing hijab for the past four years, Gonsalves said,
adding that now they are being stopped from attending the classes.
Divan
submitted there are 441 girl students from the Muslim community who are happily
studying in the college and they are given lockers and to keep their burqa or
hijab in them.
"None
of the 441 girls had any problem except for these three girls, who approached
the high court against the circular," she said.
"You
may be correct as many of them come from different backgrounds. Maybe family
members of some could ask them to wear it or they wear it (of their own
accord). But let all of them study together. Don't implement these rules,"
the court told the lawyer.
Justice
Khanna told her, "You cannot make it like this. Solution to a lot of this
is proper, good education. Yes, you may be right that no burqa can be allowed
to be worn by girls inside the classroom and no religious activities can be
permitted on the campus."
Informing
the court that the college has been in existence since 2008 and functioning
without any government aid, Diwan said if the institution allows hijab and
naqab to worn by particular students, how will it prevent others from coming
wearing saffron shawls and other attire symbolic of their religious identity.
"We
are a non-political, religion-neutral school. We only wanted that wearing hijab
or naqab does not become a barrier for students in interaction," she
submitted, urging the court to not take away its autonomy.
Justice
Khanna said the larger issue of allowing hijab in educational institutions is
pending consideration before a larger bench.
The
top court was hearing a plea challenging a Bombay High Court verdict upholding
the college's decision to ban hijab, burqa and naqab inside the campus.
The
high court on June 26 refused to interfere with the decision of the N G Acharya
and D K Marathe College imposing the ban, saying such rules do not violate the
fundamental rights of students.
It
said a dress code is meant to maintain discipline and is a part of the
college's fundamental right to "establish and administer an educational
institution".
The
top court is yet to conclusively decide the legality of such diktats issued by
educational institutions.
On
October 13, 2022, a two-judge bench of the apex court 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, dismissed the appeals challenging the
judgement of the Karnataka High Court refusing to lift the ban, Justice
Sudhanshu Dhulia held there shall be no restriction on wearing hijab anywhere
in schools and colleges of the state.
The
top court is yet to constitute a larger bench to decide the Karnataka hijab
row.
The
Mumbai college's decision has again put the spotlight on the hugely divisive
issue.