The Supreme Court today, Tuesday, August 6 ordered the hearing of a petition challenging the Bombay High Court's (HC) decision to uphold a Mumbai college's decision to prohibit the wearing of hijab, burqa, and niqab on campus.
On June 26, the Bombay High Court refused to overturn the prohibition imposed by the Chembur Trombay Education Society's NG Acharya and DK Marathe College, stating that such measures do not violate students' fundamental rights.
It stated that the dress code is intended to preserve discipline, which is part of the college's fundamental right to "establish and administer an educational institution".
A bench consisting of Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra, taking note of the plea seeking an immediate appeal listing, stated that the matter has already been assigned to a bench and will be listed soon.
Lawyer Abiha Zaidi, representing petitioners including Zainab Abdul Qayyum, requested an urgent hearing, citing the college's unit tests scheduled to begin on Wednesday.
The Supreme Court has yet to rule on the legitimacy of diktats made by educational institutions.
The Karnataka hijab ban row
On October 13, 2022, a two-judge bench of the Supreme Court issued opposing decisions in the hijab controversy that originated in Karnataka.
The then-BJP-led state government prohibited students from wearing Islamic head covering in schools.
While Justice Hemant Gupta, who has since retired, dismissed appeals challenging the Karnataka High Court's decision not to repeal the prohibition, Justice Sudhanshu Dhulia ruled that there should be no restrictions on wearing hijab anywhere in the state's schools and universities.
What about the current case?
The current dispute arises from a decision made at a Mumbai college.
The Bombay High Court dismissed the petition against the ban by the college, stating that the clothing code applied to all pupils, regardless of religion or caste.
The students claimed that it violated their fundamental rights to practise religion, privacy, and freedom of choice.
The college's actions were "arbitrary, unreasonable, bad-in-law, and perverse", according to the plea.
The high court, however, stated that it did not see how the college's clothing code breached Articles 19(1)(a) (freedom of speech and expression) and 25 (right to practise 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 HC had said.
The high court had also refused to accept the petitioners' contention that wearing a hijab, niqab and burqa was an essential practice of their religion.
"Except for stating that the same constitutes an essential religious practice based on 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 niqab is an essential religious practice. The contention in that regard, therefore, fails," the HC had said.
