Baffling Supreme Court Judgment On Beards

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In Mohammad Salim versus Nirmala Convent Higher Secondary School, a Supreme Court bench headed by Justice R V Raveendran decided that the plaintiff has to abide by the rules and regulations of educational institutions especially if it is a minority institution. The judgment, while correct in its spirit, is debatable in its implications. Private educational institutions do have a right to make their own rules and regulations but if it results into an infringement upon their fundamental right to freedom of religion of students then it is borderline unconstitutional.

In India such issues are being decided on a case by case basis and judgments are hampered by few legal precedence and fewer constructive debates. The comments made by the other judge on the bench,  Justice Markandey Katju, have already vitiated the atmosphere for the latter to happen in India. In particular his comments about beards/burqa and equating those Islamic symbols with Talibanisation are hurtful and more of a reflection upon himself than on either the Indian society or the Taliban terrorists.

While dismissing the plea of defendant, Justice Katju remarked, “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,”  and “I am secularist. We should strike a balance between rights and personal beliefs. We cannot overstretch secularism.” [The Hindu]

While it is true that the Taliban are bigoted, murderous thugs that force Muslim men to grow beard and Muslim women to wear burqa apart from committing other brutalities, those symbols in themselves do not constitute a support of the Taliban ideology when adopted voluntarily. By analogizing wearing burqa or growing beard with Taliban, Justice Katju has played into the hands of Taliban terrorists who want to portray themselves as the only true Muslims. He has made it difficult for regular Muslims wearing burqa or sporting beards now as it carries the taint of support of Taliban. It will allow Taliban and similar such terrorist groups to further misappropriate the religion of Islam as those opposing them can’t do it without first removing their beards or burqas. It will severely dent the argument that many of us have been making that extremist Taliban ideology can only be defeated by traditionalist Islamic thought but Justice Katju apparently sees no difference between a bearded cleric opposing Taliban and the Taliban themselves. How are the Deobandi ulema supposed to counter the ideological misrepresentations of Islam by Taliban terrorists when they themselves are being likened to them just because of some facial hairs?

Justice Katju also needs not to be reminded that it is not just the bearded Taliban fighters who could be terrorists but a clean-shaven western educated person could act in a similar fashion. The 21 terrorists who stuck on 9/11 or the 10 who terrorized Mumbai on 26/11 were not necessarily Justice Katju’s personification of how a terrorist should look like. Did Amir Ajmal Kasab wore a beard? Did Afzal Guru when he attacked the Parliament?

Justice Katju’s comments about burqa are equally baffling. Does he not know that a majority of Muslim women who wear burqa do so at their own volition? And by doing so they are just trying to follow modesty taught by their religion and not making a veiled statement in support of the Taliban. How different is Justice Katju’s assessment then from the ABVP goons who forcibly took burqas off Muslim students in Karnataka early March?

Mohammad Salim’s case was further weakened by his counsel arguing that keeping beard was an indispensable part of his client’s religion when he himself, as a Muslim, didn’t sport a beard. However the august court does not need to be reminded that it is not for them to decide what constitutes religion for an individual and what does not. Another court a few months back denied permission to two IAF officers to grow beard as it is not allowed in the armed forces. But Sikh armed force officers are allowed to keep beards as in court’s opinion keeping beard is an integral part of Sikhism. Keeping beard is part of Islam as well and it is up to a Muslim to make that choice form himself. The courts can’t decide what is required of Muslims and what is not as it can’t decide who is a Sikh and who is not. A recent report by Washington Post claims that less than 25% of Sikhs under 30 wear turbans even though it is an integral part of their belief. What happens when an un-bearded, un-turbanded or un-long-hair Sikh decides to seek admission to a Sikh minority institute? Should he be denied admission under Sikh quota because he is in violation of his religious beliefs? A similar case happened in 1998 when one Yadwinder Singh sued Dashmesh Institute of Research and Dental Sciences in Faridkot when it refused admission to him based upon his cut hair. A court in Punjab ordered the institute to pay Rs 7 Lakh as damages to the complainant Yadwinder Singh.

Prima facie it appears that Justice Katju and the bench over-reached their jurisdiction and some of the comments made by the bench went way beyond the scope of the case. What is good for Sikhs is good for Muslims and other religious denominations as well. At the very minimum if Mohammad Salim’s Sikh classmates are sporting beards as part of their religious traditions then he should be allowed to do the same on that basis. A healthy debate on private institutions right to set rules and regulations is needed. At the same time the courts can’t litigate religion from the bench.

Photo: Bearded Muslim

Tagged as: Judicial Activism, stereotypes, supreme-court, taliban, Terrorism