India's Supreme Court stays Mumbai college’s dress code banning hijab

India’s Supreme Court on Friday stayed a Mumbai private college’s instruction banning the wearing of hijab, cap or badges by students on campus, The India Express reports.

“Issue notice returnable in the week commencing November 18. In the meanwhile we partly stay clause 2 of the impugned circular to the extent that it directs that no hijab, cap or badge will be worn. We hope and trust this interim order is not misused by anybody. Respondents (college) can move court if it is misused,” a bench of Justices Sanjiv Khanna and P V Sanjay Kumar said.

Three students of N G Acharya and D K Marathe College in Mumbai’s Chembur had approached the Supreme Court by filing a Special Leave Petition (SLP) through advocates Hamza Lakdawala and Abiha Zaidi, challenging the June 26 Bombay High Court order that dismissed their plea against the institute’s dress code.

Clause 2 of the instructions issued by the college reads as follows, “You shall follow the dress code of the college of formal and decent dress which shall not reveal anyone’s religion such as No Burkha, No Nakab, No Hijab, No Cap, No Badge, No Stole etc. Only full or Half shirt and normal trousers for boys and any Indian/western non revealing dress for girls on the college campus. Changing rooms available for girls.”

The students’ plea sought direction to quash and set aside the impugned instructions and pending hearing of SLP, it sought a stay on the same, failing which, the students claimed “their lives and careers will be destroyed”.

Appearing for the students, Senior Advocate Colin Gonsalves said they had been wearing the hijab for four years in college and there was no problem but “suddenly” the college had come up with the instruction.

The bench questioned the college about the circular. “What is this? They will not reveal their religion…religion is revealed by the name and other things?” Justice Khanna asked Senior Advocate Madhavi Divan who appeared for the college.

Divan said, “We are a private unaided institution”.

“Maybe but don’t impose such a rule,” Justice Khanna added.

The college claimed that the dress code applied to all students, across religious and community lines. It said that the objective behind the rules was to not reveal students’ religion. “You don’t want the students’ religion to be revealed… Won’t their names reveal their religion? Will you ask them to be given numbers at the gate so that they are not addressed by name?” asked Justice Kumar.

Divan said that the circular may have been worded improperly. “Perhaps that is badly expressed,” she said.

Divan submitted that there are over 400 girl students from the same community who are happily attending college and only three students have filed the petition before the apex court. “We have 441 Muslim girls who are happily attending. No problem. It is only these three…we believe there are barriers which are created when a girl is wearing a niqab. This is co-education. We are providing lockers, if you feel comfortable coming to college in that, it’s fine. We provide you, you can change,” she said.

Divan also pointed out that there are restrictions even in Muslim-majority countries.

“Let us put it this way. They must study together…You may be somewhat right because the background they come from, the family members may say, wear and go, do not take off your hijab,” Justice Khanna said.

“They have not been wearing it always,” Divan said.

“Should it not be left to the girl to decide what she wants to wear? Where is the question of you empowering women by enforcing your dress code?” Justice Kumar said.

“Tomorrow, we will have people in saffron shawls and all. We don’t want that. We are not a political playground, we are not a religious playground,” Divan said.

To the counsel’s submission that the college has been in existence since 2008, Justice Kumar said, “It is unfortunate that you come up with these kinds of instructions after so many years. Suddenly you realise that there is religion in this country!”

Divan said “no one was insisting” on it till now. “This is a face cover. These are barriers to interaction,” she added.

“But why issue a circular of this nature? Let’s assume three of them were wanting to be separate or distinct. Let them be. They probably within some time will realise that,” Justice Khanna said.

“Mine is a completely neutral institution…a Hindu group tried to intervene before the HC, we strictly said stay away. We don’t need anybody over here. We want to maintain an environment that is conducive for education and for the interaction,” Divan said.

Justice Khanna asked, “Will you say someone wearing a tilak will not be allowed? Certainly not.”

“It will not be allowed,” said Divan, adding this is for all religions. She insisted, “Why should a niqab be permitted? It is a face cover. There are markers…This is a barrier to interaction.”

After Divan said that the college’s autonomy to decide on the issue cannot be taken away, Justice Khanna remarked that it was not doing so. “Nobody is taking away your autonomy. But at the same time don’t make it a point that you have to insist A or B should be coming in this fashion,” said Justice Khanna, adding, “The solution to a lot of things you are arguing is proper good education. Certainly, burka cannot be permitted in a college because you can’t sit in a class like that.”

The Supreme Court was told earlier this week that the unit tests for the petitioners were to commence on Wednesday and the students belonging to the minority community were bound to face difficulties due to the instructions imposed through the dress code and therefore urgent hearing was required.