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!

Globalisation and the Indian Legal Sector

In what may perhaps be the first academic study in the field, Professor Jayanth Krishnan (who is also a contributor to this Blog) examines the issues that revolve around the opening up of the Indian legal sector to foreign law firms. In his paper Globetrotting Law Firms, which is the product of empirical study through fieldwork and interviews, Professor Krishnan comprehensively discusses various policy arguments and suggests some proposals for the way forward. The abstract is as follows:

"Despite the current financial crisis, prestigious American and British law firms continue to maintain a presence in Continental Europe, Latin America, and China. Yet, in one economically fertile, democratic country - India - such global legal powerhouses are scarcely found.



This study seeks to understand empirically why there is a general absence of these and other foreign law firms practicing in India. Based on fieldwork and compiled interview data of lawyers, judges, government officials, activists, and clients from India, the United States, and Britain - the latter two being the foreign countries most interested in gaining access to the Indian legal market - I show that the conventional wisdom on this subject is inadequate, and that there are multiple layers to this debate. But as I also show, what makes this story so fascinating is how both supporters and opponents of foreign law firms in India have strategically coupled their policy arguments with potent symbolic rhetoric to champion their perspectives. The study concludes by outlining a set of preliminary proposals that would permit American, British, and other foreign law firms gradually to enter India but would also incorporate the concerns held by opponents and could serve as the foundation for reaching a comprehensive resolution."

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.

Environmental, Social and Corporate Governance (ESG) Factors

While examining issues pertaining to corporate governance, a myopic approach is to look at the interest of the shareholders, whose interests are to be protected. On the other hand, there is a school of thought, known as the “stakeholder” approach, which calls for governance of companies with a view to protecting the interest of stakeholders in a company, which include not only shareholders, but also employees, creditors, customers and the community in general (that may be affected by a company’s business and operations). As far as India is concerned, there is something to be said about the fact that company law does cater for the “stakeholder” approach (i.e. that it requires companies to do more than maximize the interests of their shareholders). Without going into any significant detail, that the words “public interest” find mention in several places in the Companies Act is in itself a noteworthy piece of evidence.

This debate becomes far more important in the context of the strengthening cries towards sustainable development, inclusive growth and corporate social responsibility, particularly in developing / emerging economies like India. Apart from businesses themselves, investors (especially institutional investors) are also adopting different approaches towards this issue, with the concept of socially responsible investment (SRI) being one such.

What then is the practice in emerging markets and how successful have the efforts been? This is a question that has been addressed in a survey commissioned by the International Finance Corporation (IFC) and conducted by Mercer Consulting. The Executive Summary in the survey begins as follows:

Over the past five years, phenomenal economic growth in emerging markets has increased the speed of the depletion of natural resources and created tensions with sustainable development. Despite these tensions, sustainable investment (SI), which entails integrating environmental, social and corporate governance (ESG) factors into investment processes, has gradually evolved in emerging markets. IFC, the private arm of the World Bank Group engaged Mercer to conduct this study to identify leading investment managers, pursuing sustainable investment in emerging markets, … and their capacity for integrating ESG into investment processes.

Based on a comparison of various emerging markets, the report does not favourably rank India when it comes to socially responsible investing:

India demonstrated awareness of local social issues but notable absence of active ownership

The Indian EME investment managers scored relatively well in terms of the level of firm-wide commitment to ESG integration, mainly through links with the international parent/holding company where a commitment to ESG had been made at the global organisation level. We also observed a natural tendency for some of the investment managers to consider the implications of local social issues in their appraisal of investment opportunities, particularly on the issues of poverty reduction, access to clean water and sanitation. Where specialist ESG research staff existed at the organisation wide level, they are yet to extend their coverage to Indian companies. Many managers demonstrated a reluctance to utilise voting or engagement as tools for pursuing SI, with most managers opting to sell a stock if they identified a risk, rather than choosing to engage.

Such findings give rise to the questions as to whether a regime ought to be introduced that further enables socially responsible business activities. In that sense, at a legal or regulatory level, the current corporate governance discourse (surrounding the Companies Act and Clause 49 of the listing agreement) is largely limited to shareholder value maximization and the framework does not seem to contain any concrete disposition towards sustainable investment and corporate social responsibility, barring the occasional reference to “public interest”.

The bizarre story of Mr.Joynath Victor De

The dismissal by the Supreme Court of the SLP by Mr.Joynath Victor De against his compulsory retirement by the Indian Airlines Ltd. for refusing to trim his moustache is bizarre because one expected a reasoned order from the Court, especially since it attracted international attention, as evident from this Google entry. In fact, the Supreme Court's Bench comprising Justices Sema and Katju had admitted the SLP, and issued notice to the Indian Airlines, because it was surprised how the airlines despite allowing their mascot Maharaja to have long grand moustache have terminated the services of their employee because of the same moustache. A report in Indian express last year said:

De had refused to trim his long moustache despite the airlines' amended rules that made it mandatory for all in-flight male employees, except those belonging to Sikh community, to trim their moustache regularly, so that it does not go beyond the upper lips. After De, who claimed his moustache formed part of his long family tradition, refused to follow the amended rules, the airlines shifted his services to the ground staff. Later, the state carrier forced him to retire, alleged the petitioner in his appeal.

If competition indeed compelled the airlines to amend its rule, should not the Court have given a reasoned and elaborate judgment to justify this discrimination?

Sanjay Dutt and Navjot Singh Sidhu: Flaws in Supreme Court's reasoning

Supreme Court's judgment in Sanjay Dutt's case, denying his plea for suspension of his conviction under the Arms Act is based on the subtle distinction which the Court tried to make between his case and that of Navjot Singh Sidhu. The Court suggested that in Sidhu's case, his conviction was suspended because he was a sitting Member of Parliament when he was convicted. He resigned, and sought election on moral grounds, even though he could have continued, filed an appeal within three months, and avoided disqualification under the S.8(4) of RPA. Secondly, the trial court had acquitted him, while the High Court had reversed the acquittal. These two factors are not present in Sanjay Dutt's case, so the Supreme court has suggested.

When I read the Navjot Singh Sidhu judgment of the Supreme Court, I was dismayed at the poor reasoning adopted by the Supreme court. I was even more dismayed to find that the Supreme Court relied on this very poor reasoning to set it apart from Sanjay Dutt's petition, though the Supreme Court might have been correct in refusing to suspend Sanjay Dutt's conviction on merits.

Let me explain some of the obvious flaws in the Sidhu judgment.

1. The Court: Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. The courts should exercise the power to stay conviction only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.

While this is a valid criterion, it cannot be said to make the Sidhu case unique. Sanjay Dutt too could have easily fulfilled this requirement.

2. The Court: It was not necessary for the appellant (Sidhu) to have resigned from the membership of the Parliament as he could in law continue as M.P. by merely filing an appeal within a period of 3 months and had he adopted such a course he could have easily avoided incurring any disqualification at least till the decision of the appeal. However, he has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. A person who resigns from the Parliament or the Assembly and seeks a re-election, if elected, will have greater moral authority to represent the constituency.

Read the above with what the Court said subsequently in the same judgment:

The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.

Inconsistency apart, if this is the yardstick, most convicted criminals in legislatures only need to resign from their seats,and seek reelection (which they are likely to win, considering their clout)in order for the Courts to suspend conviction.

3. Having considered the Sidhu's case on the ground that he sought reelection, the Court went on to say this, further heightening the inconsistency in its judgment:

We are not required to adjudicate upon the question as to what will be the effect of the order and further whether he will continue to be disqualified for the purpose of contesting the election even if the prayer made by the appellant is granted as such an issue is wholly alien to the present controversy which can arise only in an election petition where the validity of the election may be called in
question.

4.The Court was also making a judgment on the quality of the crime: a conviction for the offence of corruption is worse than one for any other offence. Read this:

When a conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused. This is not the case here.

5. The Supreme Court gave relief to Sidhu also because he was not a Member of Parliament when he committed the offence, for which he was convicted; therefore, he could not have misused his position as an MP to commit the crime. But the Court overlooked the fact that he was then a celebrity, and being a celebrity in society carries with it certain amount of influence, normally denied to non-celebrities. Even if an accused does not happen to be a public servant or a celebrity at the time of commission of crime, how could it be a mitigating factor, when it comes to disqualification? The law does not envisage such a distinction between convicts.

It is surprising why the CBI's counsel did not seek a reconsideration of the Supreme Court's judgment in the Sidhu's case by a larger Bench, even though Sanjay Dutt's counsel relied on it to seek suspension of his conviction.

Shame of a Name and The Great House Hunt

This blog has discussed the issue of housing discrimination several times in previous posts (I, II, III and IV), so it may not be very interesting to go through the legal arguments once again (for those who want to catch up, I have summarised possible legal remedies for dealing with housing discrimination here). I just wanted to share two moving stories being furiously debated on Kafila - personal narratives by Zainab Bawa and Sohail Hashmi (on last count, Zainab's story had 44 comments which themselves make a very interesting read). Also interesting is Anjum Hasan's following account:

...what it means to be a Muslim who is not quite a Muslim. Bangalore, where I now live, is perhaps the most hospitable city in the country but trying to rent a house sometimes means dealing with landlords who wish to first get the matter of religion out of the way. Now wait a minute, I have wanted to say to the house-owner who asks me on the phone if I'm Muslim. I know he is drawing on a pre-existing mental picture. I want to answer him in the negative and hope he gets the implication, which is that not everyone with a Muslim name is ‘Muslim' . But if he misses my subtle point, I will only be encouraging him to continue discriminating against those who conform to the image in his prejudiced head. Better, then, to say – ‘Yes, I am' and try to get across the subtext – ‘And so what?' Which possibly means losing the house, which seems eminently unfair.

These narratives should remind us that behind our sanitised legalese are real people facing real consequences because of choices made by our legal system (for choosing not to act is also a choice). Sohail's anecdote suggests that housing discrimination against Muslims in Delhi is (a) not recent, i.e. not a product of recent ostensible linkages between Islam and terrorism, (b) systemic and widespread enough to dictate basic life choices regarding where to live and everything else that goes with it, and (c) solely based on the religion of the applicant (the use of intelligent and innovative pretexts notwithstanding). Sadly, all we have is anecdotal evidence. This is an issue crying out for statistical analysis so that we can realise the true extent of the problem and test the generality of these anecdotes.

Incidentally, readers may be interested to know that the 2009 election manifestoes of the Congress Party and the CPI(M) promise to establish an Equal Opportunity Commission by law, while the CPI manifesto promises to 'end discrimination in the matter of job recruitment and disbursement of various economic schemes.' (For a detailed discussion on the Equal Opportunity Commission and its potential implications for this discussion, see this article).