Bombay HC Upholds Hijab Ban

Source: The Indian Express

Introduction

In June 2024, the Bombay High Court dismissed a petition filed by nine female students challenging the dress code in one of a College in Chembur, Mumbai. The college's dress code prohibited wearing hijabs, niqabs, burkas, stoles, and caps on campus. A division bench consisting of Justice AS Chandurkar and Justice Rajesh S Patil ruled that the dress code was in the "larger academic interest" of the students.

The court upheld the college's decision, stating that the dress code aimed to prevent the revelation of students' religious identities and was limited to college premises, thus not infringing on students' freedom of expression outside the campus.

What is the Background of Zainab Abdul Qayyum Choudhary & Ors. v. Chembur Trombay Education Society's NG Acharya and DK Marathe College and Ors.?

• A college implemented a dress code for students pursuing their second and third-year undergraduate courses.
• The dress code stipulated that student attire should be formal, decent, and not reveal religious affiliation. This included restrictions on wearing hijab, niqab, burka, stole, caps, etc. on campus.
• Some students challenged this dress code, claiming it violated their fundamental rights.
• The petitioners argued that the dress code was:
  • Arbitrary and discriminatory
  • Infringing on their right to choose their attire
  • Violating their right to privacy
  • Restricting their right to expression under Article 19(1)(a)
  • Limiting their right to freedom of religion under Article 25 of the Constitution
  • The college countered that:
  • The dress code applied equally to all students
  • It aimed to maintain discipline
  • It was intended to prevent the disclosure of students' religious identities through their attire
• The court referred to previous similar cases:
  • Fathema Hussain v. Bharat Education Society and Ors.,(2003) where a headscarf prohibition was upheld
  • Fatima Thanseem (Minor) v. State of Kerala,(2019) which supported a school's right to prescribe a dress code
• The petitioners claimed the dress code violated their fundamental rights to practice religion, the right to privacy, and right to choice.
• They described the college's action as "arbitrary, unreasonable, bad-in-law and perverse."

What is Court Observation?

• Court observes that dress code does not infringe upon Article 19(1)(a) or Article 25 of the Constitution. The dress code serves a legitimate academic interest by promoting a focus on education rather than religious identification.
• Petitioners failed to establish that wearing hijab or niqab constitutes an essential religious practice.
• The institutional right to maintain discipline supersedes individual students' right to choose attire within college premises.
• The dress code, being uniformly applicable, complies with University Grants Commission (UGC) (Promotion of Equity in Higher Educational Institutions) Regulations, 2012 guidelines on equity in higher education.
• The college's implementation of the dress code falls within its constitutional right under Article 19(1)(g) to manage its affairs.
• The dress code's scope, limited to college premises, does not unduly restrict students' freedom of expression beyond campus boundaries.

What is Article 19(1)(a) of COI?

• Article 19(1) (a) of the Constitution of India states that all citizens shall have the right to freedom of speech and expression.
  • The philosophy behind this Article lies in the Preamble of the Constitution, where a solemn resolve is made to secure to all its citizen, liberty of thought and expression.
• The following aspects are included in Article 19(1)(a):
  • Freedom of Press
  • Freedom of Commercial Speech
  • Right to Broadcast
  • Right to Information
  • Right to Criticize
  • Right to expression beyond national boundaries
  • Right not to speak or right to silence
• Essential Elements of Article 19(1)(a), COI
  • This right is available only to a citizen of India and not to foreign nationals.
  • It includes the right to express one’s views and opinions at any issue through any medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.
  • This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions.

What is Article 25 of Indian Constitution?

• This Article deals with the freedom of conscience and free profession, practice and propagation of religion. It states that-
  • (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
  • (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law.
    • (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.
    • (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus
    • Explanation I - The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion
    • Explanation II - In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

What are guidelines on equity in higher education Regarding Dress Code in Education Institute?

• 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 based on caste, creed, religion, and language is prohibited.
• 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.
• In Present case the Instructions issued by the College are applicable to all students irrespective of their caste, creed, religion or language.
  • The Instructions seek to prevent students from disclosing their religion through their dress.
  • The object is to discourage discrimination on any count whatsoever.
  • Court does not find as to how these guidelines and instructions are violated by the Instructions issued by 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.

Conclusion

The Bombay High Court's ruling in June 2024 upheld the dress code in College, which prohibited religious attire on campus. The court found that the dress code served a legitimate academic interest and did not violate constitutional rights or UGC guidelines on equity in higher education. The judges emphasized that the dress code applied uniformly to all students and was limited to college premises, thus not unduly restricting students' freedom of expression. This decision aligns with previous rulings on similar cases, reinforcing the right of educational institutions to implement dress codes that aim to create a non-discriminatory learning environment.