HC upholds Mumbai college hijab ban, says no breach of fundamental rights

The Bombay high court on Wednesday refused to interfere with a decision taken by a city-based college to impose a ban on hijab, burka and naqab, observing that such rules do not violate students' fundamental rights.

A dress code is meant to maintain discipline which is part of the college's fundamental right to "establish and administer an educational institution", held a division bench of Justices A S Chandurkar and Rajesh Patil.

The dress code was applicable to all students irrespective of religion or caste, the HC said, dismissing a petition filed against the ban by nine girl students.

The students, who are in the second and third year of the science degree course, had moved the high court earlier this month, challenging a directive issued by the Chembur Trombay Education Society's N G Acharya and D K Marathe College imposing a dress code under which students cannot wear a hijab, naqab, burka, stoles, caps and badges on the premises.

The petitioners claimed it was against their fundamental right to practice religion, the right to privacy and right to choice. The college's action was "arbitrary, unreasonable, bad-in-law and perverse", the plea said.

The court, however, said it could not see how the prescription of dress code by the college violated Articles 19(1)(a) (freedom of speech and expression) and 25 (freedom to practice 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 judges said.

The bench also refused to accept the petitioners' contention that wearing a hijab, naqab and burka was an essential practice of their religion.

"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 naqab is an essential religious practice. The contention in that regard therefore fails," the HC said.

Prescribing a dress code should be seen as an "exercise towards maintaining discipline", and the right to do so flows from the fundamental right to establish and administer an educational institution under Article 19(1)(g) (right to practise any profession or run trade/business) and Article 26 of the Constitution, the HC said.

The dress code was mandatory only within the college premises and the petitioners' freedom of choice and expression was not otherwise affected, it said.

The intention behind prescribing a dress code was that a student's religion should not to be revealed, and "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," said the court.

"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 HC said.

The dress code expected students to wear something formal and decent which would not disclose their religion, and the college provided a changing room for girl students to change out of their hijab or burqa, the court noted.