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.