Friday, April 03, 2009

Beards, Burqas and Bias: Contemptuous Statement?

Venkatesan's interesting post on the Salim case (dealing with the extent to which minority institutions can lay down rules that conflict with the religious beliefs of a student) drew some interesting comments. I want to offer a slightly different perspective (legal) and also to reflect on Justice Katju's unfortunate statement that equates all bearded Muslims with the Taliban!

Most newspapers report that Justice Katju, who, when confronted with Salim’s argument that the constitution guaranteed him the right to practice his faith by keeping his beard is said to have stated: “We don’t want to have Taliban’s in the country. Tomorrow a girl student may come and say that she wants to wear a burqa. Can we allow it?”

I spoke to two counsels who appeared for Salim who confirmed that these statements were indeed made in court. Thereafter, I wrote a short note on Justice Katju's offensive remarks, calling for sharp censure from the Chief Justice. More importantly, I opined that notwithstanding the merits of the case, Justice Katju's callous and insensitive comments about a minority community renders him unfit to be an impartial judge in a case involving the religious rights of that very community. Therefore, the case must be reheard before another bench and it must be considered afresh whether or not Salim's SLP can be admitted.

I sent this short note of mine to a leading newspaper a few days back and they were meant to carry it the very next day. Unfortunately, they expressed reservations at the last minute, citing their fear about potential contempt issues.

I was taken aback: Does every critique of a judge amount to contempt? And besides, if our media shirks away from carrying any critique of a judge, no matter how offensive his remarks, whither our core democratic and free speech values enshrined in the Constitution? And whither the interests of a minority community, whose sentiments are so liberally trampled upon by a judge, meant to uphold constitutional values?

Isn't it fair to demand that a judge who equates every Muslim with a beard with a member of the Taliban is censured? And to argue that such a judge has breached the secular fabric of our Constitution in very deep ways. And that he is not fit to hear a case involving a minority community about whom he has made these gravely offensive remarks?

I am extremely saddened at the attitude of the newspaper in this regard, but do hope that better sense prevails. I have asked them to indicate which portions of the note they've construed as contemptuous, with the hope that such portions could be worked around. In the meantime, if any of our readers know of any courageous papers that may be willing to publish such a piece, please let me know.

Now coming to legal analysis bit, I beg to differ with Venkatesan's views for the following reasons:

1. Most of the decisions delineating the scope of Article 30 would appear to suggest that Article 30 is not an absolute right. Rather, the state has some powers to step in, if the minority institution in question is mal-administered. And this limited power to regulate would also encompass the admission process, particularly when the institution in question has received state aid (TMA Pai case). The power to regulate would also appear to reduce (somewhat) when the minority institution in question has not received any state funds. In Salim's case, the convent school in question has not received any state funds.

2. It is highly improbable that a court would find that a uniform rule that required all students to have a clean shaven countenance amounts to evidence of "maladministration". An unequal application of such a rule might have demonstrated bias and therefore maladministration. But there is nothing on the facts to indicate any such unequal treatment. The petition filed before the Supreme Court speaks about the fact that Sikhs are permitted to keep their beard, hinting at the fact that the school might have made an exception for Sikhs in this regard. However, I spoke with counsel appearing in this case who confirmed that to the best of his knowlede, no Sikh or other student had ever received preferential treatment under the school rules. In other words, the school was likely to ask even Sikh students to erase facial hair.

3. Saleem argues that his right to freedom of religion under Article 25 has been violated. However, Article 25 itself begins by stating that it is subject to other provisions. In other words, Article 30 would trump Article 25 in this context.

One might even draw some support from Article 28(3) that stipulates that any unaided institution can impart religious instruction without the consent of the student or his/her guardian. If a Muslim student can be forced to kneel down and pray at a church (belonging to a Christian convent), surely such a student can also be made to shave his beard, even when such shaving contravenes his religious beliefs. As the MP High Court rightly put it, the student does have an option if he/she is troubled by such a rule: leave the school!

Therefore the Supreme Court bench may have been right in denying admission to Salim's SLP. However, in view of Justice Katju's statements made in open court that equated very bearded Muslim with a Taliban, the possibility of bias against a community cannot be ruled out. And the Chief Justice must not only censure such remarks, but take immediate steps to have this case reheard before anther bench. For justice must not only be done, but also be seen to be done!

7 comments:

Prasad said...

I would have appreciated if you had published the name of the News Paper which refused to publish your note. Non mentioning will make readers come to sweeping conclusions about the boldness of many news papers

santhosh said...

While I wish I could comments on the merits of this article, I find it strangely interesting that you assume the CJI is in any position to censure a brother Judge. Every Judge of the Supreme Court is equal. No senior judge including the CJI has any right or power to "censure" his brother Judges. The CJI does not have any powers to simply destroy orders of any other Bench either; or take up a dismissed SLP and list it for rehearing. It is not the CJI's prerogative to critique and censure. It is yours!

I am not sure, with the solutions you propose, what is more damaging to the working of India's Constitution.

Suresh said...

Shamnad,

Hasn't Justice Katju made controversial remarks in other contexts too? Regarding the remarks quoted here, yes, they are offensive and disgraceful. Any judge, in presiding over a case, is expected to confine himself/herself to points of law. What point of law does "We don't want Talibans in the country" address, may one ask?

The point, therefore, is not so much that Justice Katju made "offensive and insenstive remarks" but that he irrelevant remarks, which, to make things worse, were also offensive and insensitve. The pity is, as you note, that one could have come to the same decision as Justice Katju by sticking to points of law only.

Shamnad Basheer said...

Dear All,

Thanks very much for your comments. Many of the issues you raise are addressed to a large extent in the text of the note itself. Thus, to the question of whether or not the CJI can ensure, I state in the note (whilst comparing the CJI's remarks with that of Varun Gandhi's):

"And yet while one was arrested under the National Security Act (NSA), it is not even clear whether under the present constitutional scheme, the other one merits any sanction? The irony of course is that while making these unfortunate remarks, Justice Katju defends them under the guise of “secularism”, holding that “I am a secularist. We should strike a balance between rights and personal beliefs.”

Suresh: you're absolutely right about the fact that his remarks were not germane to the issue at all. I state in the note that:

"A friend of mine who litigates at the Supreme Court chose to label Justice Katju’s remark as an “off the cuff” remark, stating that the petition was anyway dismissed and therefore his remarks did not impact the merits of the case. Firstly, given the tenor of the judges’ comment, I wonder how anyone can rule out a bias against Mohammed Salim and the community that he belongs to? After all, as a sagacious aphorism goes: Justice must not only be done, but also be seen to be done. Secondly, notwithstanding the impact on the merits of the case, the comments, by themselves, uttered in public by a constitutional functionary merit not just attention but strong censure. And where possible, other avenues of adequate sanction must also be explored."

Yes, Katju J has been known for these sort of remarks: but does that necessarily absolve him only because he has now more or less made it a habit to pass offensive comments? And that all of us have to learn to live with this streak of his?

Suresh said...

Dear Shamnad,

I did not mean to suggest that Katju's previous history of making controversial remarks absolves him in the present instance - apologies if I inadvertently gave that impression.

The Taliban crack is not the only remark of Justice Katju that leaves me puzzled. Take his assertion I am a secularist to the core also made during the course of delivering his judgment. Clearly, this is irrelevant. It reads to me as though the judge is telling us, "Look, you should trust me because I am secular." In other words, he is implicitly conceding that his arguments lack legal merit. Leave alone bias, this raises questions about his jurisprudence.

K.V.DHANANJAY said...

Dear Shamnad. I fully appreciate your concern here. Newspaper reports do suggest a petitioner and a counsel who seem to have been victimised and most news versions are consistent with one another.

Is it possible that Justice Katju was frustrated with poor reasoning in some of the judgments delivered by the Supreme Court on the issue of religious freedom? Could he have responded, not so much to those before him, but to what has been authored by the Supreme Court lately on the topic of religious freedom? Often, Justice Katju, in conversations elicited by clever counsel, reveals the source of his opinions and until you know his source, you can rarely engage him.

The problem at hand seems to be that the counsel was thrown off his arguments when the 'taliban' remark came from the Bench. A retired judge, Khan, who takes up a case of this kind, I am sure, had much to offer in support of the petitioner if only he had been heard.

If you know those litigants, may be, you should ask them to file a Review petition immediately. Those litigants and their counsel have my full support and I offer to fully assist them in any way I am asked to. Of course, all pro bono.

A debate on what is over is less effective than an effort to remedy what is clearly, unjust. Neither the petitioner nor his counsel, in my opinion, had to go there with a fool proof or even a reasonably strong case in order to be treated with dignity. They deserved to be treated with dignity not so much for their learning or lawyering, but for the mere fact that they happen to be citizens of this great country.

I am beginning to think that a 'beard hurts none' and intolerance of a 'beard' is actionable though invoked in the name of a 'Regulation'.

Red said...

Shamnad

Thanks for your post.I really think we have to figure out a way to create a space for critiques of the judiciary. That said, Katju is an interesting judicial character who gets it from Hindu nationalists who have called a " good dhimmi" for his comments on Gujarat and Orissa, and from brahmin scholars for his op ed pieces on caste and as well from the Muslim personal Law Board. His comments on a whole range of public issues, his self authored judicial biography on the SC website as well as his behavior on the bench suggest that he cannot be easily categorised.


I must confess I am curisous about the paepr that refused the op ed, particularly after I found a defense of Justice Katju's secularism by Rajeev Shulka in the Indian Express

"hose who believe in India’s secular credentials must find a true hero in Supreme Court Justice Markandey Katju, who has time and again stood up for safeguarding the country’s secular character. Justice Katju has often taken a stance against fundamentalism of all religions and not only did he strongly condemn the Gujarat riots against the minority community — terming them a disgrace to the country — he also took the Orissa Government to task for failing to protect minorities during the recent riots. Katju is well-regarded for his love of Urdu and is one of the biggest known supporters of the language.

Now, his recent judgment in rejection of a petition by a student of a convent school in Madhya Pradesh —who was pleading against his school’s regulation that all students should be clean shaven — must be welcomed as a step in the right direction. The student made a case to be allowed to sport a beard. In return, Justice Katju spoke up for preventing Talibanisation of the country. "