tag:blogger.com,1999:blog-15602189.post8151612231195378265..comments2023-09-21T16:17:51.838+05:30Comments on Law and Other Things: Beards, Burqas, and Bias: Search for clarityAnonymoushttp://www.blogger.com/profile/09348738084817273397noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-15602189.post-76771024956339640302009-04-07T11:18:00.000+05:302009-04-07T11:18:00.000+05:30I am no legal expert but still to the best of my k...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.Ashish Goelhttps://www.blogger.com/profile/04116140140188769779noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-85163257497784557122009-04-06T19:57:00.000+05:302009-04-06T19:57:00.000+05:30Mohsin,Thanks for your comment. Chinnappa Reddy's ...Mohsin,<BR/><BR/>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,<BR/>532<BR/>whenever the Fundamental Right to freedom of conscience and<BR/>to profess, practise and propagate religion is invoked, the<BR/>act complained of as offending the Fundamental Right must be<BR/>examined to discover whether such act is to protect public<BR/>order, morality and health, whether it is to give effect to<BR/>the other provisions of Part III of the Constitution or<BR/>whether it is authorised by a law made to regulate or<BR/>restrict any economic, financial, political or secular<BR/>activity which may be associated with religious practice or<BR/>to provide for social welfare and reform. It is the duty and<BR/>function of the Court so to do. Here again as mentioned in<BR/>connection with Art. 19(2) to (6), it must be a law having<BR/>the force of a statute and not a mere executive or a<BR/>departmental instruction."<BR/><BR/>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.Dilip Raohttps://www.blogger.com/profile/18294894305584371011noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-9203233463416190032009-04-06T00:14:00.000+05:302009-04-06T00:14:00.000+05:30Dear Dilip,This is with regard to your statement a...Dear Dilip,<BR/><BR/>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. <BR/><BR/>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).<BR/><BR/>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.Mohsin Alamhttps://www.blogger.com/profile/10142853163611065586noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-66683561296414123412009-04-05T21:12:00.000+05:302009-04-05T21:12:00.000+05:30VV, Suresh,I understand your argument about unifor...VV, Suresh,<BR/><BR/>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.Dilip Raohttps://www.blogger.com/profile/18294894305584371011noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-72268495321799740782009-04-05T16:47:00.000+05:302009-04-05T16:47:00.000+05:30Venkatesan,In your response to Dilip, you claimTo ...Venkatesan,<BR/><BR/>In your response to Dilip, you claim<BR/><BR/><I>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.</I><BR/><BR/>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!<BR/><BR/>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?<BR/><BR/>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 <I>believe</I>?<BR/><BR/>You go on to assert:<BR/><BR/><I>Beards or turban, as a symbol of religion, on the contrary, could promote tolerance, and understanding among students very early in their growth.</I><BR/><BR/>Again, what's the evidence? Yes, we would all like to believe this, I know - but that's not evidence.<BR/><BR/>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.Sureshhttps://www.blogger.com/profile/12270071532015895732noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-40054434374363857042009-04-05T11:52:00.000+05:302009-04-05T11:52:00.000+05:30Sandeep Dougal's FAQs regarding the case are helpf...<A HREF="http://blogs.outlookindia.com/default.aspx?ddm=10&pid=1676&eid=5" REL="nofollow">Sandeep Dougal's FAQs</A> regarding the case are helpful and throw some light on the issues in the case.Tarunabh Khaitanhttps://www.blogger.com/profile/07234574402062317396noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-37346878640089729812009-04-05T09:58:00.000+05:302009-04-05T09:58:00.000+05:30Dilip,I hope you would agree that Indian secularis...Dilip,<BR/>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. <BR/><BR/>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. <BR/><BR/>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.V.Venkatesanhttps://www.blogger.com/profile/08138846925562952785noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-58801191873787373152009-04-05T08:27:00.000+05:302009-04-05T08:27:00.000+05:30VV,I agree that it is sufficient to hold a sincere...VV,<BR/><BR/>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.<BR/><BR/>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.<BR/><BR/>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.<BR/><BR/>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.Dilip Raohttps://www.blogger.com/profile/18294894305584371011noreply@blogger.com