Manas Dasgupta
NEW DELHI, Aug 9: The Supreme Court on Friday partially stayed a Mumbai private college’s instruction banning the wearing of hijab, cap or badges by students on campus and asked the institution’s authorities how they were empowering women by telling them what to wear.
Coming down heavily on college authorities the SC made stinging observation against it and remarked that it was unfortunate that such bans were imposed even so many years after Independence.
Hearing a petition filed by nine girl students against the ban on burqas, hijab, niqab, caps, stoles and badges imposed by the NG Acharya & DK Marathe College in Mumbai’s Chembur, a bench of Justices Sanjiv Khanna and PV Sanjay Kumar observed that hijabs, caps and badges would be allowed and added that it hoped that the order would not be misused.
When the hearing began, Senior Advocate Madhavi Divan, appearing on behalf of the college, said if the petitioners were allowed to wear hijabs and burqas, other students would come wearing saffron shawls to make a political point and it did not want that to happen.
“Will you ban girls wearing a bindi or tilak?” the bench asked. The lawyer for the college said that there were 441 students from the community in the college and when a girl wears a veil or an article of clothing like that, it creates a barrier between her and the other students. She also pointed out that changing rooms had been arranged for the students to take off their hijabs or burqas before entering.
“You may be right (but) the background they come from, family members may say wear it and go and they have to wear it. But everyone should study together,” the court said.
“How are you empowering women by telling them what to wear? What girls want to wear should be left to them. Where is their choice? You have suddenly woken up that they are wearing it? It is unfortunate that after so many years of independence, such a ban is being talked about,” Justice Kumar said.
When the college argued that the ban was also in place to ensure that the students’ religion was not disclosed, the court remarked that religion was revealed by names as well and stressed that such rules must not be imposed.
Noting that wearing a burqa could not be allowed as students could not sit in class like that, the court partially stayed the circular and said, “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.
Students 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 Burqa, 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 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 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 nine students have filed the petition before the apex court. “We have 441 Muslim girls who are happily attending. No problem. It is only these few…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 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.
