Saturday, April 04, 2009

Beards, Burqas, and Bias: Search for clarity

Shamnad’s and my posts have elicited quite a few comments, which explain (and also fail to explain) some facets of Indian secularism. Here, I wish to confine myself to some of the seemingly intractable issues, which our discussion has led to so far.

1. Shamnad’s major problem arises from the fact that he believes that the school was quite correct in seeking to impose uniformity in facial appearance on the students, by restricting the action of growing beards. Here, I find that he suffers from a major inconsistency. Does he accept that growing beard is a practice and a belief genuinely and conscientiously held by the Muslims? Personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject,of course, to the
inhibitions contained therein.

The anguish expressed by Shamnad and many Muslims over Justice Katju’s observations- even when they agree that the school may be legally correct in imposing such a rule on Salim – shows that growing beard is a belief genuinely and conscientiously held by them, and equating it with Talibanisation is nothing but an insult to Islam.

In her column in HT today, Burkha Dutt quotes Rahul Singh to suggest that turban is much more central to the religious identity of Sikhs than the beard is to the identity of Muslims. She admits that she was confused on this issue. She and Rahul Singh only need to read the SC judgment in the Bijoe Emmanuel case.

The test for Article 25(1) protection is whether a belief is genuinely and conscientiously held. It need not be central to the religious identity of a community, in the sense many people actually practice it. Rahul Singh, in Burkha Dutt’s programme The Buck Stops Here was actually challenging a Muslim cleric whether all the Muslim rulers in the world grew beard. If the answer is negative, then he would suggest it is not central to Islam. Legally, Rahul Singh is wrong, because the SC’s test is different. This also partly answers Tarunabh’s query in the comments section of my first post, wherein he asks whether the test has to be what the individual claims, or what the religious texts lay down. Though Tarunabh sympathises with the former, the law, he suggests, might support the latter. In my view, religious texts may be silent on the question, and it should be left to the community as such. In this case, the Muslim Personal Law Board apparently believes that growing beard is essential to Islam, as evident from its protests against Justice Katju’s observations.

2. Let me come to Art.30 protection. Shamnad apparently believes that the school enjoys Art.30 protection, and therefore, can override Art.25. That is, even if he believes that growing beard is essential to Islam, the student has to choose some other school which permits the practice, because the school which restricts it does so under Art.30. Now, let me turn around this argument a bit. Art.30 is also for linguistic minorities. Supposing a school, being run by a linguistic minority, in order to protect its culture, imposes a uniformity that all men students must wear dhotis, or all female students must have kumkum on their forehead. Obviously, these are unrelatable to the educational objectives of the school, and therefore, would come under aspects of maladministration.

I am unable to understand that imposing uniformity of the sorts which the school has done in the case of Salim advances the educational objectives. Why should all the students look alike in terms of physical appearance? After all, the school is a microcosm of society. If in the society outside the school, all depictions of physical diversity are permitted, why should the school seek to see artificial uniformity within it. On the contrary, encouraging such diversity in appearances of students would inculcate the feeling among them that diversity is a fact of life.

I can understand if the school insists on uniform dress, or a particular dress code, to maintain discipline, and to avoid feelings of inequality among the young students. After all, similar restrictions on growing beard may be unheard of in higher educational institutions, and the students ought to be prepared for that. Can anyone cite any reason to relate restriction on growing beard of a school student with the educational objectives of the school? If it cannot be relatable, then it has to be an instance of maladministration. The test for `administration' (in contrast to maladministration) is not whether the school seeks uniformity, but whether the rule which the school seeks to impose on the students uniformly is relatable to some educational objectives.

3. Can Art.30 be used to override other rights guaranteed in Part III? Although Art.25 begins saying that it is subject to other provisions in Part III, the very language of Art.30 would suggest that if it is used to override other rights in Part III without sufficient justification, then it will be construed as an instance of maladministration, and disentitled to Art.30 protection. The words “establish and administer” in Art.30 only emphasise autonomy of such institutions from governmental interference, and cannot be stretched to mean some sort of licence to decimate other rights in Part III, which, including Article 30, exist independently of the State. There is an essential difference between State’s duty to enforce these rights, and state’s interference for the purpose of Art.30. State has a right or a duty to enforce Art.30 also, but this obligation of the State cannot be construed as interference which curtails the autonomy of institutions protected by Art.30.

8 comments:

Dilip said...

VV,

I agree that it is sufficient to hold a sincere and conscientious belief to be eligible for Art.25(1) protection but only in the absence of a law limiting its application.

But regarding art.30, you make a distinction between state intervention for the purpose of enforcing an individual's rights versus state intervention for the purpose of art.30. As per the general clauses act, the specific institutional right of art.30 would however prevail over other general rights in part III. The distinction will therefore only hold if you can show that the specific right is not covered under art.30. You argue that this is not covered and will amount to maladministration because it is not related to the educational objectives of the institution. On the other hand, school uniform is covered because it promotes equality. Pro-shaving advocates would argue that there is no difference: the purpose of requiring shaving too (or requiring girls to take off the head scarf as in France or Sikhs to take off turbans) is the same thing - because it promotes the very same equality and discipline by preventing any particular individual or group of individuals from demonstrating a distinctive identity. Society outside is certainly more diverse than the school environment but that would again beg the same question: the ordinary public outside the school premises do not wear uniforms either, so should the right to dress freely be proscribed when the school is a microcosm of society and ought to reflect the same kind of diversity which is a fact of life? Under this line of reasoning, dhoti can certainly be prescribed for all men but it is doubtful if kumkum application can be compelled owing to its religious connotation and may come within the purview of forced religious instruction barred under art.28(3). If you define educational objectives broadly to mean an educational experience that inculcates the sentiment of blindness to religion and fosters a community that shares this belief, a requirement to shave would definitely qualify.

T.M.A Pai is not clear to me in this regard. The right to set a dress code does not figure within any of the rights mentioned in para 50. Para 54 which lists the domain of permissible state regulation does not define what constitutes 'prevention of maladministration'. Paras 61-62 refer to the need to grant unaided private schools, inter alia, maximum autonomy with regard to disciplinary powers.

I fail to see why the state automatically gets the right to interfere in any private institution (even a majority institution) simply because it is recognized unless respect for free expression of religion was a precondition for granting such recognition (do we know if this is the case?). Bijoe Emmanuel did not make a distinction but that case did not require it either. The American school cases it referred to all dealt with public schools.

V.Venkatesan said...

Dilip,
I hope you would agree that Indian secularism is unique, and comparing it with that of U.S. or France has its limits. If you agree, then you may have to reconsider your analogy of French opposition to turban, as we could never approve of such a ban on turban within our understanding of secularism.

To me, uniforms certainly make sense, as students hailing from different economic backgrounds don't let that influence their interactions with one another within the schools. As one enters college, there is considerable maturity to understand this difference, and therefore, uniforms lose relevance.

Beards or turban, as a symbol of religion, on the contrary, could promote tolerance, and understanding among students very early in their growth. Therefore, banning them, will only hinder such educational objectives. Fostering blindness to such reality outside cannot be an educational objective.

tarunabh said...

Sandeep Dougal's FAQs regarding the case are helpful and throw some light on the issues in the case.

Suresh said...

Venkatesan,

In your response to Dilip, you claim

To me, uniforms certainly make sense, as students hailing from different economic backgrounds don't let that influence their interactions with one another within the schools.

The following anecdote is due to my sister who did her entire schooling in the Kendriya Vidyalaya system. One of these schools happened to contain a lot of students whose parents were Armed Forces personnel. My sister informed me that there you had the bizarre situation where the sons/daughters of the Army officers (2nd Lieutenant onwards) would not talk to or fraternize with the sons/daughters of the non-commissioned officers. This, even, though the KVs had uniforms!

There are two different and questionable points embedded in your statement here. One, that a policy of school uniforms will enable students to forget the other differences. As the anecdote tells you, uniforms do not erase differences. To take another example: Everyone may wear the same uniform but you can't mandate that everyone should walk to school and not be dropped off by car. You think such things go unnoticed?

Second, you seem to suggest that without school uniforms, "free fraternization" will not happen and that fraternization will happen according to class/caste/religion. How do you know? Do you have any evidence or is this simply what you believe?

You go on to assert:

Beards or turban, as a symbol of religion, on the contrary, could promote tolerance, and understanding among students very early in their growth.

Again, what's the evidence? Yes, we would all like to believe this, I know - but that's not evidence.

You may well be right - we have no evidence to go by - that mandating uniform physical appearance doesn't contribute anything. For reasons of their own, the school administrators want it. But irrespective of the evidence, the question is whether the state has any business interfering here, given that it's a private school that is involved. I side with Dilip here - I really don't think so.

Dilip said...

VV, Suresh,

I understand your argument about uniforms - we have all been given the explanation since we were in school. I just think it is attributable more to tradition than to any principle. It is not very persuasive to suggest that children are too young and immature to face up to economic inequities but perfectly mature to understand and accept religious differences. The more likely explanation is probably that we simply inherited the practice from the old British school system where economic class differences were an acute concern but religious distinctions in attire and appearance were not and school uniforms were devised to protect children from such harsh realities in accordance with Victorian sensibilities.

Mohsin Alam said...

Dear Dilip,

This is with regard to your statement about the scope of Article 25. The cases dealing with Article 25 and 26, like Ratilal, Durgah Committee as well as the Anadmargis cases, have defined the scope and extent of protection of Article 25/26. In all these instances, the Court talked about the nature of protection of the Constitution. With due respect, it would be rather absurd to argue that the scope of protection of 25/26 changes in cases of statutes and executive action.

Please note that the Ram Jawaya rule is only to the extent that an executive act (even if it amounts to 'Law' within the meaning of Article 13) cannot restrict a fundamental right. But in the case of Freedom of Religion, the Court has held that non-essential aspects of religion are NOT protected. Clearly, the courts have decided not to leave the content of religion to individual religious denominations/individuals. Any contrary statement as to the law not only ignores the whole jurisprudence of the Court in this regard, but also its criticism. I refer you to the work of Marc Galanter (http://docs.google.com/fileview?id=F.a8c86ecd-97e5-4116-a7d5-0149b72a1f85) and Rajeev Dhavan (http://docs.google.com/fileview?id=F.b026631c-0f67-4660-bed7-d29f1b94ea5a).

The case of Bijoe Immanuel does not fit in this line of precedents, and it is for this reason I said earlier that it may not be relied upon in future (it is evident from the case that Chinappa Redyy, J. does not refer to even a single case dealing with Article 25). Moreover he refers to the absence of a statute only in the context of Article 19, and he certainly does not draw any inferences as to the application of Article 25 from the absence thereof. Therefore, absence of a statute is irrelevant for the determination of the scope of protection of Article 25/26.

Dilip said...

Mohsin,

Thanks for your comment. Chinnappa Reddy's point was only that restrictions on the freedom of conscience could be imposed through the instrument of a law (as understood within the meaning of Art.13) which of course include rules and regulations framed by the executive but not by unsupported department circulars. The point was made equally with reference to both Art.19 and 25. With reference to Art.25, I quote the relevant sentences: "Therefore,
532
whenever the Fundamental Right to freedom of conscience and
to profess, practise and propagate religion is invoked, the
act complained of as offending the Fundamental Right must be
examined to discover whether such act is to protect public
order, morality and health, whether it is to give effect to
the other provisions of Part III of the Constitution or
whether it is authorised by a law made to regulate or
restrict any economic, financial, political or secular
activity which may be associated with religious practice or
to provide for social welfare and reform. It is the duty and
function of the Court so to do. Here again as mentioned in
connection with Art. 19(2) to (6), it must be a law having
the force of a statute and not a mere executive or a
departmental instruction."

Before commenting any further on how consistent it is with the line of cases, I would like to read the critiques you mentioned. The links do not seem to work. Could you kindly check? Thanks.

ashish goel said...

I am no legal expert but still to the best of my knowledge, something which is an essential religious function must be excused from imposing any restriction. Reasonable restrictions can only be imposed when the act is not an essential but is remotely linked to the religious function of any community. If Sikhs can be allowed to carry kirpans in schools and offices then why cannot muslims be allowed to dress themselves as they wish regardless of whether it affects the administration of the school concerned. In a dmocracy, we ought not find laws to negate a right but rather we shall discover or invent new laws that protect a right. This is all I had to say. As regards the Article 30 arguments, I completely agree with Venkatesan Sir.