Banning Hijab On College Campus In Larger Academic Interest, To Avoid Disclosure Of Religion: Bombay HC

It is definitely most refreshing, most reassuring and so also most rejuvenating to note that the Bombay High Court in a most progressive, pertinent, pragmatic and persuasive judgment titled Zainab Abdul Qayyum Choudhary & Ors vs Chembur Trombay Education Society’s NG Acharya and DK Marathe College and Ors in Writ Petition (L) No. 17737 of 2024 and cited in Neutral Citation No.: 2024:BHC-OS:9252-DB that has been pronounced most recently on June 26, 2024 has minced just no words to hold clearly that the dress code prohibiting students from wearing hijab, nakab, burka, stole, cap etc on the campus of a Mumbai college is in students larger academic interest. We thus see that a Division Bench of Hon’ble Mr Justice AS Chandurkar and Hon’ble Mr Justice Rajesh S Patil while dismissing a writ petition against the dress code filed by nine female students of NG Acharya and DK Marathe College of Art, Science and Commerce unequivocally justified the dress code. So the Bombay High Court finally rejected the contentions of the petitioners and justified in detail in this noteworthy judgment as to why they were rejected.

At the very outset, this robust, refreshing, remarkable, rational and recent judgment authored by Hon’ble Mr Justice AS Chandurkar for a Division Bench of the Bombay High Court comprising of himself and Hon’ble Mr Justice Rajesh S Patil sets the ball in motion by first and foremost putting forth in para 1 that, “Nine Students pursuing their second and third year education for undergraduate courses at the College run by the first respondent – Chembur Trombay Education Society have raised a challenge to the Instructions issued to students requiring them to follow the prescribed dress code. In addition, a notice-cum-whatsapp message dated 01/05/2024 issuing instructions in the matter of following the dress code is also under challenge. The petitioners allege that the prescription of dress code as a result of which they are restrained from donning a Hijab or Nakab is arbitrary and discriminatory. It affects their fundamental rights guaranteed especially under Article 19(1)(a) and Article 25 of the Constitution of India.”

To put things in perspective, the Division Bench envisages in para 2 that, “According to the petitioners, prescription of dress code for the first time after they took admission at the College couple of years ago is against the spirit of the University Grants Commission (Promotion of Equity in Higher Educational Institutions) Regulations, 2012, the Rahistriya Uchhastar Shiksha Abhiyan – RUSA as well as the National Education Policy, 2020. While seeking admission to the second and third year undergraduate course for the Academic Sessions 2024-25, they learnt about the aforesaid Instructions on 07/05/2024. They raised an objection to the same by addressing e-mail to the College and the Management. Thereafter, they made a complaint before the Hon’ble Chancellor as well as other Authorities concerned. By urging that imposition of the dress code would affect their right to education, they have approached this Court.”

As we see, the Division Bench enunciates in para 5 that, “We have heard the learned Counsel for the parties and we have perused the documentary material on record. At the outset it may be stated that in view of the categoric stand of the College that it had not issued any whatsapp message on 01/05/2024 and that it would only enforce the Instructions for students in the matter of prescribing the dress code, it is not necessary to refer any further to the said whatsapp message. Since the Petitioners have raised a challenge to the Instructions issued by the College prescribing the dress code for its students, it would be necessary to quote the relevant portion of those Instructions. Clause 2 thereof reads as under:-

“2. You shall follow the dress code of 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 room available for girls.”

Thus under the aforesaid dress code, the dress of the students is expected to be formal and decent that should not reveal the religion of any student. What is permitted for girl students is any Indian/Western non-revealing dress on the college campus. It further states that a changing room for girls has been provided.”

Do note, the Division Bench notes in para 7 that, “At the outset, we may note that this Court had an occasion to consider a challenge to the prohibition of wearing head scarf by girl students while attending class on the premise that such direction was violative of the students’ rights. Reference can be made to the judgment of the Coordinate Bench in Miss Fathema Hussain, a minor Vs. Bharat Education Society and Ors., AIR 2003 BOM 75, wherein a direction issued by the Principal of a High School to a girl student that she could not attend classes wearing head scarf was under challenge. On behalf of the student, it was urged that the direction issued by the Principal was violative of her fundamental right of freedom of conscience and professing, propagating and practicing Islam religion. Considering such challenge, it was held that by merely asking the student to maintain the dress code prescribed by the school, it could not be said that the student’s fundamental right of freedom of conscience and free profession, practice and propagation of religion was violated. There was no breach of the provisions of Article 25 of the Constitution of India. It was further held that a girl student not wearing the head scarf while studying in a girls section could not in any manner be inconsistent with verse 31 of Chapter 24-64 of the Holy Quran. The challenge was accordingly negatived.”

Most significantly, the Division Bench mandates in para 12 postulating that, “While considering the present challenge it must be noted that what has been done by the College in the form of Instructions for students is to prescribe a dress code at the College. The regulation of such a dress code has to be treated as an exercise towards maintaining discipline at the Institution. This right flows from the recognized fundamental right to establish and administer an educational institution under Article 19(1)(g) and Article 26 of the Constitution of India. In TMA Pai Foundation and others vs. State of Karnataka and others (2002) 8 SCC 481 it has been held by the Supreme Court that the aforesaid fundamental right to establish and administer an educational institution is subject to the provisions of Article 19(6) and Article 26(a) of the Constitution of India. We do not find as to how the prescription of the dress code by the College offends the provisions of Article 19(1)(a) and Article 25 of the Constitution of India. The object behind prescribing the dress code is evident from the Instructions since they state that the intention is that a student’s religion ought not to be revealed. It is in larger academic interest of the students as well as for the administration and discipline of the College that this object is achieved. This is for the reason that students are expected to attend the educational institution to receive appropriate instructions for advancement of their academic careers. The insistence for following the dress code is within the college premises and the petitioners’ freedom of choice and expression is not otherwise affected. Moreover, a changing room has also been provided for girl students. 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 College Administration and the Management have a fundamental right to administer the educational institution under Article 19(1)(g) of the Constitution and in exercise of that right as well as with the object that education can be seriously pursued, the same has been issued. In that view of the matter, the decisions relied upon by the learned Counsel for the petitioners do not take their case any further especially since they have been considered by the Full Bench of the Karnataka High Court in Resham (supra).”

It is worth noting that the Division Bench notes in para 13 that, “The learned Counsel for the petitioners sought to draw support from the UGC (Promotion of Equity in Higher Educational Institutions) Regulations, 2012. Under Clause 3 thereof, a higher educational institution is required to take measures against discrimination. Discrimination on the basis of caste, creed, religion, language is prohibited. We do not see how these Regulations further the case of the petitioners. The Instructions issued by the College are applicable to all students irrespective of their caste, creed, religion or language. In fact, the Instructions seek to prevent students from disclosing their religion through their dress. The Rashtriya Uchhatar Shiksha Abhiyan aims at improving standards of higher education with focus on access and equity. The Measures for Ensuring the Safety of Women and Programmes for Gender Sensitization on Campuses published by the University Grants Commission deal with the issue of gender sensitization in Universities and Colleges. The National Education Policy 2020 aims at equity and inclusion in higher education amongst other objectives. Similarly, the Guidelines to provide Equitable Opportunity for the SocioEconomically Disadvantageous Groups in Higher Educational Institutes framed by the University Grants Commission intends to make higher educational institutions inclusive, equitable and sensitive to Socio-Economically Disadvantaged Groups. All the above guidelines and instructions attempt to promote a non-discriminatory atmosphere in higher educational institutions. The object is to discourage discrimination on any count whatsoever. We do not find as to how these guidelines and instructions are violated by the Instructions issued by the College. On the contrary, the Policy on Code of Ethics laid down by the Management of the College seeks to enforce the aforesaid guidelines and instructions. Students are expected under the said policy to abide by and conform to the rules and regulations of the College. The Instructions thus issued are not against the spirit and object of the aforesaid guidelines and instructions issued by the University Grants Commission.”

Be it noted, the Division Bench notes in para 15 that, “The aspect of pleadings and proof for sustaining a plea based on essential religious practise also has material bearing. Whether the donning of a Hijab or Nakab is an essential religious practise has to be determined historically as well as factually. The importance of pleadings with regard to an essential religious practise has been highlighted in A.S. Narayana Deekshitulu vs. State of Andhra Pradesh (1996) 9 SCC 548 as well as in Indian Young Lawyers Association vs. The State of Kerala, 2018 INSC 908. In the writ petition, it has been pleaded that the petitioners have been donning a Hijab and/or Nakab for last few years. The pleadings in the writ petition to support the plea that donning of a Hijab or Nakab is an essential religious practice however are insufficient. Except for stating that the same constitutes an essential religious practice on the basis of 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 Nakab is an essential religious practice. The contention in that regard therefore fails.”

Finally and far most significantly, the Division Bench then concludes by holding in para 16 that, “For the aforesaid reasons, we are satisfied that the Instructions issued by the College under which a dress code has been prescribed for its students does not suffer from any infirmity so as to violate provisions of Article 19(1)(a) and Article 25 of the Constitution of India. The object behind issuing the same is that the dress of a student should not reveal his/her religion which is a step towards ensuring that the students focus on gaining knowledge and education which is in their larger interest. The Instructions have been issued by the College Administration in exercise of its right to administer the educational institution under Article 19(1)(g) and Article 26 of the Constitution of India. The writ petition therefore fails. It is accordingly dismissed with no order as to costs. In the passing, we may note that the learned Counsel for the petitioners was not able to justify the action of the petitioners, who are students, in seeking publicity of filing of the present proceedings even prior to the writ petition being considered for admission. This led to the College questioning the bonafides of the petitioners. Since the petitioners are students, we say nothing more and let the matter rest at that.”

In summary, we thus see that the Bombay High Court has very rightly banned hijab in college campus. It has also made clear that students are free to wear any dress outside the college and the dress code would be applicable only in college. It also very rightly pointed out in detail as discussed hereinabove that banning hijab on college campus is in larger academic interest and to avoid disclosure of religion! Absolutely right! No denying!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.