Shamnad’s post has raised some interesting issues. I would broadly endorse his concern over Justice Katju’s unfortunate reported remarks. But we must understand that these remarks are reported, and are not part of the Court’s record. Justice Katju could claim that he made those observations, in order to elicit the counsel’s response to some of the doubts he had, and therefore, the remarks do not actually reflect his views. As the media has a tendency to sensationalise such observations, we must be cautious not to fall into the trap, and let our response to Justice Katju’s observations be disproportionate.
That apart, here is my response to Shamnad’s comments on my post:
Shamnad misses the point that Art.30 protection is against state intervention, and not against individual rights. Therefore, the suggestion that Article 30 trumps Art.25 may not be correct. Therefore, the school in question cannot ask the Sikhs, let alone the Muslims, to remove turban or shave their beard, unless they can establish these uniform guidelines are relatable to the school’s educational objectives, and unless the rules for state recognition conflict with those objectives. The school is an unaided, minority institution, but recognised by the State.
According to T.M.A.Pai, even an aided institution will have a right to impose its rules; therefore, the distinction between aided and unaided does not really help our understanding of the issue here. The core test here is whether it is a recognised school. If so, it cannot violate Article 25, in the garb of ensuring uniformity among students. I can understand if the school complains that the State has intervened to tell the management not to impose such a rule on the students – in which case, Article 30 will be relevant. But this is not such a case. Therefore, the student’s grievance that the school has maladministered, and lost the protection of Article 30 makes sense.
If you read Article 28(3) carefully, it treats recognition and state aid separately and not synonymously. Therefore, the school being a recognised school, there is no question of the school management imposing a rule without the consent of the parent. In any case, sporting a beard has nothing to do with religious instruction or worship, being promoted by the school, the ingredients of Article 28(3). Some letters carried in The Hindu today point out the widespread practice of schools misusing Art.30 protection to impose unreasonable restrictions on students.
I do not understand why Shamnad thinks the principle laid down in Bijoe Emmanuel case (referred to in my last post) cannot apply in the case of Salim. Can an institution use Article 30 protection, and the fact that it is unaided, to deny the students in Bijoe Emmanuel case their right not to sing national anthem? In that case, though, the school was a government school, and the judgment did not make a distinction and say that it was applicable only to government, non-minority and aided schools.