Sunday, Oct 24, 2021

FAQ: The Supreme Court's Beard Judgement

FAQ: The Supreme Court's Beard Judgement
FAQ: The Supreme Court's Beard Judgement

I Background 

1.1. Is it true that a 'restriction has been imposed on beard and burqa' because of the SC ruling it as a sign of the Taliban?

No such restriction has been imposed or even suggested. There is a controversy because of certain reported remarks of a Supreme Court judge that are not part of any iudgement or ruling. But even those remarks (a) do not imply the above and (b) whatever the judge is reported to have said is not part of any court record and we only have sketchy PTI reports to go on [See here and here] about what the judge said and in what context.

1.2. So what is the origin of this controversy? 

It started with a Madhya Pradesh schoolboy Mohammed Salim, studying then in Class X at Nirmala Convent Higher Secondary School, who was expelled from school in December last year, apparently because of  "keeping a beard against campus rules". The rules of the school -- a government-recognised minority institution -- say all students must be clean shaven.  Salim first moved Madhya Pradesh High Court but it dismissed his plea saying the school had the right to frame its own by-laws as a minority institution. He then moved the Supreme Court.

1.3. What were the grounds for asking the rules of the school to be changed?

Salim’s counsel, former Delhi High Court judge B.A. Khan cited Article 25 of the Constitution -- which guarantees all citizens the fundamental right to freedom of conscience and free profession, practice and propagation of religion -- and argued in front of a two-judge bench on March 19 that the right to keep a beard was a fundamental part of a Muslim’s religion.  He contended that the school’s rules were therefore in violation of his client's fundamental right to religion. The petition also charged that the school rules were discriminatory as it allowed Sikh students to keep beards and sport turbans, but, in Salim's case, had insisted that he either follow the rules or leave.

2. Supreme Court's Response

2.1. What was the court's response? 

The court directed justice Khan to find out and report if the school was government-aided and adjourned the case till March 30

2.2 Why?

The Supreme Court had earlier held that minority aided schools could be considered state institutions under the Constitution. Fundamental rights lie only against the state and its functionaries, not against private citizens or institutions. On the other hand, a private un-aided minority institutes has the fundamental right under Article 30 -- "the right of minorities to establish and administer educational institutions"

2.3 So what was it? What did the courts rule?

It was apparently not a government-aided minority institute. The court dismissed the petition. Please note, this is all the Supreme Court order says: 

Upon hearing counsel the Court made the following 


The special leave petition is dismissed.

3. The Controversy

3.1 So where is the confusion? How did the controversy start?

We have the PTI reports [See here and here], according to which there was an exchange of words between the petitioner's lawyer, retired High Court justice BA Khan, and Justice Markandey Katju, speaking for the Supreme Court Bench headed by Justice Raveendran. Justice Katju is reported to have said, inter-alia:

...secularism could not be overstretched and Talibanisation of the country could not be permitted ... We don’t want to have Talibans in the country. Tomorrow a girl student may come and say that she wants to wear a burqa. Can we allow it? ... [R]eligious beliefs could not be overstretched. “I am [a] secularist. We should strike a balance between rights and personal beliefs. We cannot overstretch secularism.”

The same reports also show the following exchange:

Salim’s counsel Justice (retired) B.A. Khan argued that sporting a beard was an indispensable part of Islam.

“But you [Justice Khan] don’t sport a beard,” Justice Katju told counsel.

The sequence of events is not clear, but it would seem, at least to this writer, that Justice Katju got carried away at retired justice BA Khan's harping on the fact that "keeping a beard is mandated (FARD) by Islam".

3.2 So is that really the case?

No. Beards do not find any mention in the Quran. The law books describe the injunctions about keeping a beard as a Sunnat and not Fard.  Following a sunnah is considered good for a Muslim, but it is not obligatory. For every mufti who says shaving is 'haraam' one can find another who would say it is only 'makruh' but not 'haraam.' And as a Muslim you are free to follow either of the two as your own conscience urges. But to come back to the topic, the question of beards should not even have come up as 2.2 above makes clear and the order seems to be relying only on Article 30:

The court then said a minority institution had its own set of rules and rights provided by Article 30 of the Constitution and the same could not be breached by any person. “If there are rules, you have to obey. You can’t say that I will not wear a uniform I will [wear] only a burqa,” the Bench observed.

3.3 So why did Justice Katju make the remarks he did in 3.1 above?

We do not know. We can only speculate.  We have heard some of the speculations [For example: here and here]. I hold no brief for Justice Katju but, because his remarks have earned adequate censure, it is time to speculate some more:

Is it possible that Justice Katju was reminded of the Taliban because they are  the only prominent group in the news who insist that Musllm men should not shave their beards and that Muslim women should necessarily wear a burqa and impose these conditions by force? Perhaps he was just irked at the plaintiff's advocate -- also a retired justice of the HC -- repeatedly and insistently making statements that he felt were not correct?

While almost all would agree that he should have stopped with issuing the order and providing the legal basis for it, and while the exchange between the counsel and the learned judge seems to have got rather pointed and personal and should have been avoided, it would be a bit of a stretch to insist that Justice Katju meant to imply that any bearded man or a burqa-clad Muslim woman is a Taliban or Taliban-supporter. Keeping his position in mind, the learned judge would perhaps have done well not to have made such statements that are liable to be misconstrued and misinterpreted, particularly because of reporting problems -- which is what seems to have happened. 

4. Legal Angles

4.1 What are the legal ramifications of Justice Katju's remarks?

None whatsover. It should be borne in mind that there is routinely a lot of give and take between judges and counsel in the supreme court, especially given that counsel in this case was an ex-colleague on the (HC) bench. Most significantly, the order of the Supreme Court does not consist of "the reported remark about Taliban". Therefore it cannot even be considered as obiter dicta.

4.2 Do the Courts have any business deciding what constitutes the basics or fundamentals of a religion? Has Justice Katju not ended up legislating on religion?

No -- see 3.2 and 4.1above. Besides, Justice Katju would not have 'legislated religion' from the bench, were it not for the fact that the plaintiff demanded an exemption from the customary rights of an unaided minority institution.

It is the plaintiff that sought to test and push the boundaries of the constitution, and the judge's ruling was judicially conservative, stare decisis in nature. 

Besides, since the petitioner approached and invoked the power of the court to protect something which he claimed repeatedly, insistently, as a mandatory part of his religion, it could well be argued that the court would be obliged to examine the question whether that really is the case or not.

The plea was not to protect the right to keep a beard as a basic human freedom of an individual but that it was so mandated by religion. Any court, while adjudicating, shall necessarily address itself to the prayer and the grounds adduced in support of the prayer. But, in any case, it would appear that the two-judge bench did not really get into Article 25 and stayed largely focussed on Article 30. {cf, 2.1, also see here) once it determined that it was an unaided institute. 

This order pertains to the rights of a minority institution whether it can impose a code that includes dress and beard, the order does not deal with the right of an individual Indian citizen to wear what he or she likes or keep a beard or not.

The rest all seems to be an informal -- and avoidable -- exchange between a sitting judge of the SC and a retired judge of the HC, appearing as a senior advocate for the petioner, after the order had been passed and would seem to have no bearing on the case.

4.3 By the way, why are the Sikhs treated differently?

There are two issues here. One, for the Sikhs, kes, unshorn hair, has very much become a part of their accepted identity. It is also one of the five basic features which determines a khalsa -- kachhaa, kanghaa, karaa, kes and kirpan.  Two, the stare decisis principle represents judicial conservatism--it won't take away any rights of Sikh boys  already enshrined in law and in practice, but it will hesitate to add new rights to newer groups on that basis.  Incidentally, countries like France, when imposing their recent laws, have not allowed any exemption to the Sikhs as well - but that is a different debate.

With many thanks to Mohib Ahmad, KV Bapa Rao, Professor CM Naim, Arshad Alam, Prashant Bhushan, AM Khan and others for useful questions, discussions, debates, insights and clarifications. The above of course does not claim to represent their views and they share no responsibility for my lapses  -- subject to later corrections by those more informed .

All constructive engagement with this is welcome.

Post Script: April 5, 2009

Two almost simultaneous discoveries: this and this.

Am really kicking myself that it did not occur to me to check who had decided a moustache case that had provided much mirth in our office.

And to think that it was decided, or at least reported, just a day after the controversial beard case, by the same SC bench with presumably the same Justice Katju acting as the spokesperson.

Totally escaped me. Here it is. At least, the judges are consistent in their rulings:

"If it is your family custom, keep it within the family. But when you have joined an organisation you have to to follow ," a bench of Justices RV Raveendran and Markandeya Katju quipped, dismissing Victor De's petition challenging his termination by the public sector airlines authorities.

...The apex court rejected counsel Sanjiv Sen's argument that Victor De cannot be discriminated against by the national carrier as the operation manuals of the Aircraft Act 1953 permitted the members of the Sikh community to sport beards and moustache.

"For the Sikhs sporting a moustache or beard is an indispensable part of his religion. But not for you," the bench observed.

The bench said that the airline has every right to insist that the flight crew follow certain etiquette and dress code for presenting a smart appearance before the passengers in the aircraft.

According to the apex court, even hostesses are not permitted to leave open their plait lest hair find their way into the food and beverages served to passengers. "There is nothing wrong in such rules otherwise some hair might even fall on the food served to the passengers," the bench said.

The apex court also said sporting a long moustache could intimidate children travelling in the aircraft. "There is also a feeling of children being apprehensive of the person," the apex court said.

See here: A Moustache Can Cost You Your Job



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