Thursday, April 02, 2009

Supreme Court on Mohammad Salim's right to grow beard

Supreme Court's summary dismissal of a Muslim student's petition against his school's decision to remove him from the school raises disturbing questions about the court's attitude to secularism. Apart from Justice Katju's inappropriate observations equating Talibanisation with growing beard, the case raises interesting questions of law which could have given an opportunity to the Court to examine, and clarify.

First, the facts of the case. Mohammad Salim was a student of Nirmala Convent Higher Secondary School, Sironj, Vidisha district, Madhya Pradesh from 1997. He passed 9th class in 2008. As he attained 16, his beard grew naturally. From the academic session 2008-09, the school introduced new rules and regulations, duly published in the school diary, given to every student. Under Rule 18 of these Rules and Regulations, the boys are required to have their hair-cut and shaving at regular intervals. The principal of the school prohibited Salim from attending classes, if he refused to comply with this rule. Salim was forced to take his school leaving certificate. The High Court of M.P. (Gwalior Bench) dismissed Salim's petition on 12.12.2008, on the ground that the school is a minority institution and it has a right to frame its own bye-laws in accordance with the Constitution as held by the Supreme Court in P.A.Inamdar case.

The High Court's very brief judgment cited P.A.Inamdar to suggest that "minority or non-minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other states, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost; if they do so, they lose the protection of Article 30(1)." The High Court referring to this principle of law laid down in Inamdar, concluded that there was no illegality or irregularity with regard to the regulation framed by the school and that Salim's admission was rightly cancelled.

In his SLP in the Supreme Court, Salim argued that his case is not related to the policy of reservation and therefore, the paragraph in Inamdar cited by the High Court is not relevant. He also cited Inamdar to drive home the point that the right to administer of a MEI, does not include the right to maladminister. He also pointed out that shaving beard is declared Haraam (sinful) in Islam, especially Hanafi sect to which he belongs; therefore, compelling him to shave his beard is in violation of Article 25.

The question before the Supreme Court was whether a MEI or an unaided institution has a right to impose its own rules and regulations on students against their religious beliefs. The Inamdar judgment, as is clear from the High Court judgment and the Supreme Court's endorsement of it, has apparently given the impression to the judiciary that a MEI or an unaided institution are under no compulsion to respect the religious beliefs of a student. This is a distortion of the Inamdar judgment. An unaided or a minority institution, as long as it carries the state's recognition, is bound to follow the Constitutional principles, and respect the religious beliefs of the students.

The Supreme Court's judgment in Bijoe Emmanuel vs. State of Kerala upholding the right of some students not to sing national anthem on religious grounds is applicable to both minority or non-minority educational institution or aided or unaided institutions, as long as the institution has Government's recognition. The facts of Salim's case and the students in Bijoe Emmanuel case are similar; therefore, the Supreme Court must review its dismissal of Salim's petition, and render justice to him.
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