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!
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