Friday, April 03, 2009

Beards, Burqas and Bias: Response To Shamnad

Shamnad's post has raised some interesting issues. I would broadly endorse his concern over Justice Katju's unfortunate reported remarks. But we must understand that these remarks are reported, and are not part of the Court's record. Justice Katju could claim that he made those observations, in order to elicit the counsel's response to some of the doubts he had, and therefore, the remarks do not actually reflect his views. As the media has a tendency to sensationalise such observations, we must be cautious not to fall into the trap, and let our response to Justice Katju's observations be disproportionate.

That apart, here is my response to Shamnad's comments on my post:

Shamnad misses the point that Art.30 protection is against state intervention, and not against individual rights. Therefore, the suggestion that Article 30 trumps Art.25 may not be correct. Therefore, the school in question cannot ask the Sikhs, let alone the Muslims, to remove turban or shave their beard, unless they can establish these uniform guidelines are relatable to the school's educational objectives, and unless the rules for state recognition conflict with those objectives. The school is an unaided, minority institution, but recognised by the State.

According to T.M.A.Pai, even an aided institution will have a right to impose its rules; therefore, the distinction between aided and unaided does not really help our understanding of the issue here. The core test here is whether it is a recognised school. If so, it cannot violate Article 25, in the garb of ensuring uniformity among students. I can understand if the school complains that the State has intervened to tell the management not to impose such a rule on the students - in which case, Article 30 will be relevant. But this is not such a case. Therefore, the student's grievance that the school has maladministered, and lost the protection of Article 30 makes sense.

If you read Article 28(3) carefully, it treats recognition and state aid separately and not synonymously. Therefore, the school being a recognised school, there is no question of the school management imposing a rule without the consent of the parent. In any case, sporting a beard has nothing to do with religious instruction or worship, being promoted by the school, the ingredients of Article 28(3). Some letters carried in The Hindu today point out the widespread practice of schools misusing Art.30 protection to impose unreasonable restrictions on students.

I do not understand why Shamnad thinks the principle laid down in Bijoe Emmanuel case (referred to in my last post) cannot apply in the case of Salim. Can an institution use Article 30 protection, and the fact that it is unaided, to deny the students in Bijoe Emmanuel case their right not to sing national anthem? In that case, though, the school was a government school, and the judgment did not make a distinction and say that it was applicable only to government, non-minority and aided schools.

9 comments:

Suresh said...

Venkatesan,

If we take your argument literally, then does a "recognized school" also have to allow a Muslim student to interrupt his/her classes for prayers? After all, praying five times a day is considered an essential tenet of the religion. Does this mean that classes have to be rescheduled around the namaz times? (Otherwise, the Muslim student will be missing 10 or more minutes of classes everyday which would be unfair.) I think this line of argument is bound to lead to problems with the number of religions that are prevalent in our country. (If beards are to be allowed, then can a Tamil Brahmin come along and say that his son should have the right to sport a kudumi? How about if a Muslim objects to her daughter wearing a skirt on the grounds that the Qu'ran prescribes modesty in dress?)

I am no lawyer but I fail to see how Article 25 is contravened by a private or even public school asking a student to obey a rule that it has imposed on all students. As Shamnad has noted, a student can always opt to go to another school or perhaps study privately. Yes, the other options may be "inferior" but if your religion means that much, then that's the price you have to pay. Life's not always fair.

Personally, I think *all* schools should make "reasonable" efforts to accomodate the religious beliefs of its students. But that does not amount to giving a student the power to veto a particular rule in the name of religion. This means that inconsistencies may well be there but asking for complete consistency is a recipe for chaos.

Anup said...

Venkatesan,

I think it is worth exploring further the applicability of Bijoe Emmanuel to Salim’s case. I think the difference in the nature of the respondents might crucial. In Bijoe Emmanuel, the petitioner was challenging two circulars issued by the Department of Education of the Kerala government. Since the respondent here is a minority educational institution, would you believe there are grounds to doubt the applicability of Bijoe Emmanuel?

While I agree you with you that article 30 cannot be the basis for the remedy, I think it would bring more clarity to your argument if you could clarify the following issues:

1. Does the school in this case by the fact of being recognised by the State, put itself in a position where Art.25 can be enforced against it? As in, how does the school satisfy the Art.12 test?

You stated in your earlier post that by seeking recognition from the State, the minority educational institution is bound to follow constitutional principles. Even if one were to concede that such a conclusion could be drawn from Inamdar – I would argue that it holds relevance only as a basis on which the State can interfere in the affairs of the minority educational institution despite art.30. Such a conclusion however cannot be the basis for an action against the minority educational institution by a private individual.

2. If art.25 can be enforced against a recognised unaided minority educational institution, it would follow that all fundamental rights can be enforced against such an educational institution. Wouldn’t the applicability of Art.14 raise particular difficulties?

Your argument leads to an inconsistency that I haven’t been able to resolve: the minority educational institution is a claimant to fundamental rights under Art.30 –and at the same time can be claimed against under Art.25.

Talha said...

I think, the logic, as has been always, should be that of rational nexus. If beard does lead to impairment of scholarly advances in the school, one can prohibit - or at least the size of the beard.

The problem, again Shah Banoesque one, WHO has the locus to determine what is permissible under islamic law. I dont think that judges of the Supreme Court are qualified enough to find islamic law themselves, or even look at vedas to find hindu law.

Secondly, I dont see any reason for why if a student wants to perform prayer, must be disallowed to. There are common faith prayer halls at public institutions (Heathrow Airport does it, some colleges in Oxford University have it), and it should be allowed. The idea is to let people find commonality and peace in religion and, not discomfiture and violence.

Praying five times a day is a compulsory requirement, but timing of the schools is such that it will never, or almost never interrupt. Its before sunrise and afternoon .. 12-3pm (almost)..and thus, factually speaking there is only 1 prayer which falls during the school hours (i am not considering evening schools for the moment).

Thus, it makes good rhetorical argument to say 5 times a day and 10 mins argument, but when put into practise, the argument falls flat.

In judging the rules we are not judging whether they are equally imposed on everyone, but we are looking at content of the rule vis-a-vis the article. The fact that it affects some and leaves other will not be, perhaps, covered under Article 25 (in saying "we" - I am speaking for lawyers, which is not a homogeneous class).

Shamnad Basheer said...

Dear Venkatesan,

You're absolutely right about Article 28(3) and its something I overlooked. Since the school is "recognised" by the State, consent from student has to be procured.

However, on Article 30 applying only to state intervention etc, and not to individual rights, isn't your argument a bit circular? If the state does enforce the rights under Art 25 here, isn't it intervening? And doesn't that conflict with the prerogative to administer granted to a minority institution under Article 30? As I've argued earlier, current jurisprudence around Art 30 suggests that intervention is justified only when there is maladministration--I fail to see how uniform rules on appearance amount to maladministration?

In short, I don't think you are correct in discounting the importance of Art 30 here. And for this very same reason, your attempt to transpose the logic of Bijoe Emmanuel may not hold good--since it related to a govt school and not a minority institution under Article 30. My own view is that a minority institution is well within its rights to require all students to sing the national anthem.

Shamnad Basheer said...

Venkatesan,

You state: "Justice Katju could claim that he made those observations, in order to elicit the counsel's response to some of the doubts he had, and therefore, the remarks do not actually reflect his views. "

This is a plain specious argument. What kind of response did he expect to get from a comment that equated all bearded muslims to the Taliban!

Yes, responses must be proportionate. But riding rough over minority sentiments (particularly when moderate muslims are distancing themselves from any extremist views) needs to be castigated in the strongest terms. As Suresh rightly mentioned in one of his comments, what makes it worse is that these comments had nothing to do with the key issue to be resolved.

As I've argued earlier, such comments immediately disentitle Katju J from claims of being secular or fair and impartial. And the case must be reviewed and reheard by another bench.

And lets not kid ourselves into believing that in order to be actionable, the attitude of a judge must necessarily be found in the written text of his judgment. Please note that Justice Katju made these comments in open court and that he hasn't denied making these statements (and I personally confirmed this from two counsels in the matter as well). Being a constitutional functionary meant to uphold secular values, he went completely outside his remit and did some serious damage to the secular fabric, given "election" time and attempts by politicians to play the religion card. His comments therefore castigation in the strongest terms.

Mohsin Alam said...

Hey!

I apologize for a mistake. the M. Fasi case is not a Supreme Court case, but a Kerala High Court case. Mohammed Fasi v. Superintendent of Police, MANU/KE/0114/1985

Suresh said...

Talha,

I take your point regarding namaz but my main purpose in the comment was to ask if it makes sense to allow veto rights regarding the framing of school rules. If you allow veto rights, then school rules will require unanimity (consent of all concerned) which in a country as diverse as ours is not exactly easy. My own view is that schools should make reasonable efforts to accomodate the religious beliefs of its students without allowing veto rights in this regard.

The doctrine of rational nexus that you invoke can be used to strike down almost any rule. After all, what rule is absolutely indispensable to scholarly advancement? I can't think of any such rule but that might just be me. Note also that scholarly advancement (whatever one means by it) is not the only purpose of a school. Schools may have objectives other than scholarly advancement like understanding those different from ourselves, inculcating a sense of civic duty, fostering a sense of community and so on. In some of our minority-owned schools, imparting religious education is also an objective. (Just a guess - but perhaps the weakness of our civil society partially comes from the fact that our schools devote almost all their effort to cramming for the school-leaving exams and not enough into what makes a good citizen?)

Lastly, I'm not aware of an example in other multi-cultural societies (like the US/UK) where rules for schools are framed on the basis of unanimity. However, in many cases, as you yourself note, institutions do try and in many cases go out of their way to accomodate religious beliefs to the extent possible. That is exactly what I advocate too.

Mohsin Alam said...

Hey!

The debate regarding Katju, J.'s comments has taken a strange turn. It is one thing to critique his uncalled for comments regarding talibanisation. But it is quite a different thing to analyse the rights in question here.

There are basically two issues which have to be determined in order to ascertain whether the petitioner here had a case at all- 1) Whether Article 25 covers the present case, and 2) If Article 25 is applicable, whether it will protect the Petitioner's claim of keepin a beard.

Moving on to the 1st issue- As has been pointed out earlier, Article 25 is enforceable against the State (defined under Article 12). Clearly, Article 30 (and the debate regarding minority educational institutions) is completely out of place here. This is because the debate regarding control of aided/unaided minority educational institutions does not revolve around whether recognition/aid to such institutions turns them into 'State' within the meaning of Article 12. But rather the debate in TMA Pai-Islamic Academy-Inamdar has been whether giving aid/recognition to such institutions triggers the need for the State to open up these institutions to all classes of citizens as mandated under Article 29(2). It would be absurd to argue that recognition trasforms a private institution into 'State' while using the TMA Pai line of cases.

So what is the revelant debate regarding enforceability? We have enough authorities regarding the meaning of 'State' within Article 12. The tests have been given by the Apex Court in many cases, including Sukhdev Singh v. Bhagatram, Ajay Hasia v. Khalid Mujib, and recently in the Zee Telefilms case. Even a superficial perusal of these tests will confirm that the educational institution in the present case does not fulfill these conditions. Thus, Article 25 is not enforceable against this institution.

Moving on to the second issue, it surprises me that no one has pointed out to the content and scope of the right to freedom of religion under the Indian Constitution. It may surprise a few, but the Supreme Court has consistently held that religious freedom is only protected to the extent it involves 'essential'/'mandatory' aspects of religion. See Hanif Qureshi v. State of Bihar, Saifuddin Saheb v. Bombay. Verma, J. in the Ram-janmbhoomi Case even held that mosques are not protected under Article 25 for Muslims since it is not mandatory for Muslims to pray in a mosque- and they can pray anywhere. In fact, there has been a case on beards in Court. In Mohammad Fasi v. UoI, the High Court of Kerala has held that beards are not mandatory under Islam, and therefore not protected under Article 25. it surprises me that no one pointed out that Police and Army have rules against keeping beards (while Sikhs are exempt from this rule), and till now, even these rules have not been struck down. If the government agencies are allowed to keep such rules, a private educational institution is completely free to do it. One may not like this position of law (and it has been critiqued by Dr. Rajeev Dhavan and Prof. Marc Galanter, among others), but the law seems to be settled. In this context, the Jehovah Witnesses case, which was referred to earlier, is an anamoly, and it is highly unlikely that it will be followed by the Court.

Therefore, in any case, the Petitioner has no claim under Part III.

Dilip said...

Mohsin,

The SC's holdings on the essential aspects of religion alone being protected is only true in the presence of a law that limits the right to religion. All of these cases from Ratilal Panachand Gandhi and L.T.Swamiar through Quareshi and others deal with challenges to constitutional validity of an existing statute. In Bijoe Emmanuel, the court's holding was more limited: it simply held that absent a law, the government could not restrict an individual's sincere and conscientious belief. So the position appears to be that by default, conscientious beliefs are all entitled to protection but a statutory enactment may limit it to only essential aspects.

The reasoning of the kerala high court opinion may be interesting to look at. Do you happen to have a link to it?