kirpans, lawand religious symbols in schools - 3 … · kirpans, lawand religious symbols in...

Kirpans Law and Religious Symbolsin Schools

Satvinder Singh Juss

ldquoIn Sikhism the Kirpan is an instrument of non-violence that should be usedto prevent harm from being done to a defenceless personrdquo1

To what extent should the right to religious expressionprevail over student safety concerns The issue has arisenmost dramatically in recent years with respect to Sikh studentswanting to wear the kirpan in schools It has arisenacross the world in countries as diverse as Canada2 the United

SATVINDER SINGH JUSS (PhD Cantab Barrister-at-Law of Grayrsquos Inn HumanRights Fellow Harvard Law School) is professor of law at Dickson Poon LawSchool Kings College London and is director for the Center for TransnationalLaw His articles have appeared in Cambridge Law Journal Oxford Journal ofLegal Studies Harvard Human Rights Journal Modern Law Review BrighamYoung University Law Review Journal of Church amp State International Journalof Refugee Law Journal of Conflict and Security Law Statute Law Review andHuman Rights Quarterly Special interests include religion refugees and immi-gration and human rights This is a modified version of a paper presented bythe author at the invitation of the Archbishop of Canterbury at a Roundtableon Human Rights Human Dignity and Faith at Lambeth Palace on January13 2012 This event brought together a high level group of academics fromthe field of human rights ethics and theology and senior personnel from inter-national development and human rights organizations to reflect on the currentglobal context of human rights discourse The roundtable discussion was aimedat exploring the historic connections and current tensions between the humanrights discourse and some cultural and faith perspectives See also httpblogsuniceforgukauthentic_voicesarchive20120117human-rights-and-faith-roundtable-at-lambeth-palaceaspx

Journal of Church and State doi101093jcscss058 The Author 2012 Published by Oxford University Press on behalf of the J M DawsonInstitute of Church-State Studies All rights reserved For permissions please e-mailjournalspermissionsoupcom

1 ldquoBoyrsquos Sikh Dagger in School Banrdquo BBC News October 13 2009 httpnewsbbccouk1hienglandlondon8304088stm2 See the decision of the Supreme Court of Canada in Multani v Commissionscolaire Marguerite-Bourgeoys SCC 6 (2006) under the Canadian Charter ofRights and Freedoms where safety measures for the kirpan were that it beworn under a school boyrsquos clothes that its sheath to be made of a material(wood not metal) that meant that it would not cause injury to anyone andthat it be sewn into a sturdy cloth envelope Also referred to in the UK case ofBegum R (on the application of) v Denbigh High School UKHL 15 (2006)

1

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States3 Great Britain Australia and New Zealand This is notunsurprising The kirpan is not a humble object It has beendescribed as ldquoa small curved ornamental steel daggerrdquo4 or ldquoaswordrdquo5 that is ldquocommonly 75 centimetres longrdquo and ldquois carried ina sheath and strapped to the body usually under clothingrdquo6 Theissue is of importance as one of individual religious expression Butit is also important because it calls into question the commitmentto multiculturalism pluralism tolerance and broad-mindednessthat is the hallmark of the Western liberal democratic state7

The wearing of the kirpan raises these issues far more acutely thanthe more familiar examples of religiously ordained dress codes8

3 A case that needs to be better known is the prendash911 US case of Gurdev KaurCheema v Harold Thompson 67 F 3d 883 (9th Cir 1995) in which circuit JudgeHall held that ldquothe children had to prove that their insistence on wearing kirpanswas animated by a sincere religious belief and that the school districtrsquos refusalto accommodate that belief put a substantial burden on their exercise of reli-gion The children unquestionably carried their burdenrdquo Available online athttpwwwsikhcoalitionorgadvisories7-legal20-united-states-judicial-opinions-regarding-the-sikh-religious-identity-summary-of-landmark-decisionsJune 24 2011 Also see httpfederal-circuitsvlexcomvidgurdev-jaspreet-thiara-alvarnaz-ayora-38431292 This article will not however further considerthe case-law from the United States as the discussion here is the countries ofthe British Commonwealth4 See httpwwwnriinternetcomNRIsikhsKIRPANKirpan_wearing_in_SchoolsAsiaAustraliaVictoria_ALLOWED_KIRPANhtm It is said that ldquo[t]hepractice of carrying the sheathed scimitar can be traced back to the lifetimeof the sixteenth-century Sikh prophet Guru Hargobind who regularly carriedtwo swords as a symbol of a Sikhrsquos spiritual as well as temporal obligationsrdquoSee Rebecca Lowe ldquoSikh Dagger Banned by Finchley Schoolrdquo The TimesOctober 13 2009 httpwwwtimes-seriescouknewstopstories4679126Sikh_dagger_banned_by_Finchley_school5 Michael Sheridan ldquoPlymouth-Canton School District in Michigan AllowsStudents to Wear Kirpan Daggers to Classrdquo NY Daily News February 1 2011httpwwwnydailynewscomnewsnational201102012011-02-01_michigan_school_district_allows_students_to_wear_daggers_to_classhtmlixzz1DSGsnj5g6 ldquoSikh Knives lsquoShould Be Allowed in Schoolsrsquordquo The Sydney Morning HeraldFebruary 10 2010 httpwwwsmhcomauworldsikh-knives-should-be-allowed-in-schools-20100209-npsyhtml 7 In Sahin v Turkey - 4477498 [2005] ECHR 819 (10 November 2005) httpwwwbailiiorgeucasesECHR2005819html the court explained thatldquo[p]luralism tolerance and broadmindedness are hallmarks of a lsquodemocraticsocietyrsquordquo (sect 108) See also Kokkinakis v Greece May 25 1993 sect 3 Series Ano 260-A and Buscarini and Others v San Marino [GC] no 2464594 sect 34ECHR 1999-I8 In 2008 fourteen-year-old Sarika Singh won a High Court case against herschool after it excluded her for breaking its ldquono jewelryrdquo rule for wearing akara (a Sikh bangle) see Watkins-Singh R (on the application of) v AberdareGirlsrsquo High School amp Anor [2008] EWHC 1865 (Admin) (July 29 2008) httpwwwbailiiorgewcasesEWHCAdmin20081865html But in another casewhere there was not only an alternative school available but also a rule

Journal of Church and State

2

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which do not raise concerns of personal safety9 in the way that theSikh kirpan ostensibly does10 The obvious question therefore isthis Is the wearing of the Kirpan an issue that should be left fordetermination by individual states given their own specific domesticcontext Or do international perspectives have a role to play in defin-ing the contours of religious accommodation in society The ques-tion is not necessarily best left to the realm of rights becausehaving a right is one thing being allowed to exercise that right inthe midst of others in society is another Equally there is noreason why society should not deem it to be in the general publicinterest to support religious attire by faith groups Accordingly theaims of this article are three-fold

First it sets out to contrast the relatively liberal approach inBritain to the wearing of the kirpan with that of other jurisdicationsand argues that this difference lies in the British familiarity withSikh traditions given its colonial heritage and the absence of suchfamiliarity elsewhere leading Britain to take a more pragmaticapproach to such questions This provides a basis for the argumentthat ultimately rights issues that arise in the context of freedom ofreligion have to be resolved through intercommunal dialogue in away that is contextually attuned to the religious meanings of a prac-tice Second this article argues that the determination of whetherthere is a right to wear a kirpan is not best addressed as a questionof rights and that the orthodox idea of state neutrality in matters ofreligion must be modified to become more pragmatic and communitybased Third this is not to say of course that there is nothing fornational polities to gain from having a transnational court On thecontrary where a transnational human rights court of not

prescribing the wearing of jilbabs Lord Hoffman was less sympathetic ldquoI saynothing about such cases because Shabinarsquos family had chosen to send her toa school which required uniform to be worn and her wish to manifest her reli-gious belief could not have been accommodated without throwing over theentire carefully crafted systemrdquo (sect 54) See Begum R (on the application of)v Denbigh High School [2006] UKHL 15 (March 22 2006) httpwwwbailiiorgukcasesUKHL200615html9 Although it is conceivably arguable that the wearing of a kara (a Sikh bangle)in Watkins-Singh also raised safety issues10 There is evidence of an increased tendency to curb the public manifestationof religious symbols see Ben Quinn ldquoBurqa Wearing Banned in Canada forThose Taking Citizenship Oathrdquo The Guardian December 12 2011 httpwwwguardiancoukworld2011dec12burqa-wearing-banned-canada whichreports how Muslim women will no longer be able to cover their faces as theytake Canadian citizenship after the countryrsquos immigration minister announceda ban on anyone wearing the niqab (the face veil) or burqa (full body and facecovering) while taking the oath of citizenship The immigration ministerexplained that this was a ldquomatter of deep principlerdquo

Kirpans Law and Religious Symbols in Schools

3



ownloaded from

inconsiderable expertise adjudicates on a large number of religious-based claims as the European Court of Human Rights has clearlydone over the years there is a veritable body of jurisprudence fornational polities to draw upon and which can stand as a benchmarkof foundational values for all to see These are values that domesticsystems can in turn themselves take emulate and further developMany have indeed done so State systems have gone so far ashaving internalized these values in their local systems of law and gov-ernance At a practical level therefore the striking of fair balancebetween competing State and Individual interests is a matter that isbest left to domestic systems to administer because they are cogni-zant of local needs and pressures in the way that a transnationalinstitution is not and as such can make decisions based on compro-mises that are more durable and enduring and therefore all the moreeffective and meaningful for that

The example of the Sikh Kirpan is a good illustration of this thesisas is evidenced by United Kingdom state practice where a contextualand pragmatic approach has been taken by local bodies with theassistance of the law to the practical resolution of a communityissue that has brought into play a variety of different interestsThis suggests that whereas a transnational court can provide Statebodies with the aspirational ideals of a democratic liberal societywhen it comes to the negotiation of a solution to a societal issue itis individuals their organizations and state parties who must ulti-mately learn to work together effectively Clearly therefore theState must learn to play a more activist and interventionist roletowards the achievement of these ends than it has hitherto done

The British practice is illuminating in all these respects Religiousdiversity has been encouraged This is especially so in the field ofeducation Educators in the United Kingdom have even recentlyargued that allowing people to wear what they want on faithgrounds would encourage participation in furthering higher educa-tion among ethnic minority groups11 In May 2011 leaders of the Uni-versity and College Union determined in a debate to pledge theirsupport for the right of people of all faiths ldquoto wear the religioushead-dress and other religious attire appropriate to their faithsrdquo12

The University and College Union also expressed concern over theldquoalarming precedentrdquo of Burnley College in Lancashire Englandwhich decided in 2010 to ban the burqa on security grounds13

11 See Richard Garner ldquoLecturers Back Students Right to Wear the BurquardquoThe Independent May 29 201112 This was to be done on May 30 2011 Ibid13 In fact in 2009 it had also refused a student permission to enroll at thecollege while she was wearing a veil ldquoAnybody should be free to wear whatthey choose to follow their beliefsrdquo said Alan Whitaker president of the


4



ownloaded from

What is no less significant is a further amendment at the debate14

tabled by lecturers at the London School of Economics to the effectthat ldquoan important principle of education is to combat superstitionand prejudicerdquo the London School of Economics lecturers stressedthat allowing people of all faiths to wear what they want wouldhelp to achieve this The amendment added ldquoPeople of all faiths orof none have the right to dress as they personally consider appropri-aterdquo15 It is unclear whether the participants in this debate had intheir mind also the right of Sikh students to wear the kirpan It isentirely possible that they did because it would have been fully inconformity with the professed principles of the debate whichexpress the fundamental principle that allowing people to wearwhat they want as a matter of faith is in the wider public interestfor societies committed to multiculturalism and diversity Indeedas Judge Rozakis and Judge Vajic reminded us most recently in theEuropean Courtrsquos judgment in Lautsi v Italy in 2011 ldquoThere is noconsensus among European States prohibiting the presence ofsuch religious symbols and few States expressly forbid themrdquo16

At the same time those who oppose the use of religious symbolsin the public sphere are not necessarily wrong What is at stake hereis the ownership of public spaces and whether and among whom itis to be shared Yet if freedom of religion is to mean anything itmust mean the long established democratic tradition of protectingthe human rights of everyone and of supporting diversity This iseasier said than done because Western liberal society is on thewhole characterized by the rise of secular democracies in whichreligious pluralism has been established as a condition of maintain-ing freedom of religion The advent of modern religious-based com-munities in the midst of European society engaging in conduct thatis at best unfamiliar and at worst threatening to the state poses animportant challenge to policymakers at all levels of governanceEuropean values of freedom of religion on the one hand and stateneutrality on the other now stand in tension and conflict witheach other

university and College Union ldquoThat has been a principle of the union We are asecular union but that doesnrsquot mean wersquore anti-religion Wersquore in favor ofpeoplersquos freedom to practice any religion they choose and to be able to followthe customs of that religionmdashand that includes what clothing they wearrdquo Ibid14 This debate came hot on the heels of the French governmentrsquos decision toban the wearing of the veil in publicmdasha move criticized by the union as evidenceof increasing Islamophobia Other countries such as Austria were said to beconsidering similar moves if the number of women wearing veils grows Ibid15 Ibid16 Lautsi amp Others v Italy - 3081406 [2011] ECHR 2412 (March 18 2011) httpwwwbailiiorgeucasesECHR20112412html


5



ownloaded from

The result is that governments in all countries now have to decidewhat restrictions they can legitimately impose on religious-basedconduct and practice The task is all the more difficult because itmust be conducted within the framework of secular democracybut in relation to practices allegiances and affiliations that arebased on religion and belief that may pose a threat to the founda-tions of secular democracies This is most obviously the case withthe burqa17 The example of the Sikh kirpan is a more interestingone however because it has so far escaped notice hidden as it isunder the garb where it is secluded from public view but it is noless threatening in its own way than the Burqua is to mainstreamviews about how adherents of religious faiths should present them-selves in the participation of public space18 The example of thekirpan is chosen here to demonstrate that the best approach tothe difficult question of harmonious coexistence is a constructivedialogue conducted between policymakers representatives of civilsociety from all levels and religious and secular organizations soas to achieve the pluralistic society for which contemporaryliberal European society aims Central to this question will be anexamination by all concerned of what kinds of religious and culturalsymbols should be permitted in the public space The answer maylie in permitting all symbols some or none

It will be necessary to face up to the questions of to whom thepublic space belongs who has access to it and what the role ofthe state is This is especially the case in Europe which is nownot only a truly multicultural place but also a place where these

17 Matthew Parris ldquoPlease Uncover Your Face Itrsquos Our Customrdquo The LondonTimes May 28 2009 Available online at httpwwwcoptscoukindex2phpoption=com_contentampdo_pdf=1ampid=1240 where Matthew Parris contro-versially wrote ldquoKnowingly to disturb peoplersquos feelings is to be offensive InWestern European society to go out in public with your face masked is(unless done for comic effect) disturbing Hiding the face is felt to be threaten-ing and slightly scary and subliminally this goes way back and quite deep Ithink it certainly frightens children Would it be wrong to try to convey to com-munities in Britain who adopt the full hijab that though it is a womanrsquos legalright to dress as she chooses she should recognize that shersquos in a countrywhere many people will find a masked face disturbing and that (withoutmeaning to) she is acting in a culturally inappropriate manner which mayoffend Do the masked women I see in the street in Whitechapel actuallyknow this I cannot say because Irsquove never spoken to them or rather when Ido they look away and walk away This too in Britain is rude Do they knowShouldnrsquot theyrdquo See also the editorial comment in ldquoVeiled Threatrdquo The TimesJune 26 2009 which asserts that the burqa a symbol of repression has noplace in a free society18 It is perhaps even at first blush more threatening because of the potentialfor violence that it represents in the minds of those who may be unfamiliarwith its true significance


6



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important social questions are being transmuted into legal oneswith an increasing number of cases going to the courts Thestate may choose to develop a more inclusive public spacemdashonewhere a more liberal and more accommodating approach istaken to education religious symbols and religious dressmdashor itmay act in an exclusionary way choosing to see society in theimage of its forefathers Both approaches will define Europe forthe future and the nature of European society for years to comeBut one will be a very different Europe from the other What isclear is that these questions will not go away On April 12 2011four new cases were communicated to the United Kingdom asnow pending against it before the European Court of HumanRights The two cases of Nadia Eweida and Shirley Chaplin con-cerned the right to wear a small crucifix on a necklace in the work-place19 The two cases of Lillian Ladele and Gary McFarlaneconcerned the right to refuse to serve same-sex couples becauseof religious beliefs20

This article considers the issue from the standpoint of the UnitedKingdom but draws also from the experiences of other English-speaking countries in the Commonwealthmdashnamely CanadaAustralia and New Zealandmdashbecause they offer lessons in howthe common-law system can often provide a practical solution toproblems that may otherwise appear mired in dogma and ideologyand are intractable for that

The Kirpan as Religious Manifestation

The right to religious belief is an absolute right21 It engages rightsof conscience agnosticism skepticism and even nonbelief and

19 Application nos 4842010 and 5984210 which were lodged on August 10and September 29 2010 See Nadia EWEIDA and Shirley CHAPLIN v the UnitedKingdom no 4842010 ECHR 201120 Application nos 5167110 and 3651610 which were lodged on August 272010 and June 24 2010 See Lillian LADELE and Gary MCFARLANE v the UnitedKingdom - 5167110 [2011] ECHR 737 (April 12 2011) httpwwwbailiiorgeucasesECHR2011737html21 Article 9 reads as follows 1 Everyone has the right to freedom of thoughtconscience and religion this right includes freedom to change his religion orbelief and freedom either alone or in community with others and in publicor private to manifest his religion or belief in worship teaching practice andobservance 2 Freedom to manifest onersquos religion or beliefs shall be subjectonly to such limitations as are prescribed by law and are necessary in a demo-cratic society in the interests of public safety for the protection of publicorder health or morals or the protection of the rights and freedoms ofothers See the Council of Europe website at httpwwwechrcoeintnrrdonlyresd5cc24a7-dc13-4318-b457-5c9014916d7a0englishanglaispdf atpage 11


7



ownloaded from

atheism22 It goes to the ldquoidentity of believers and their conceptionof liferdquo23 But the right to the manifestation of religious belief is aqualified right24 There is good reason for this The manifestationof onersquos religion or belief may take forms of worship teaching prac-tice and observance25 that are not to everyonersquos liking26 Where in

22 Nowhere is this better expressed than in the seminal case of the EuropeanCourt of Human rights in Kokkinakis in which the court said ldquoThe Court reiter-ates that as enshrined in Article 9 freedom of thought conscience and religionis one of the foundations of a lsquodemocratic societyrsquo within the meaning of theConvention This freedom is in its religious dimension one of the most vital ele-ments that go to make up the identity of believers and their conception of lifebut it is also a precious asset for atheists agnostics skeptics and the uncon-cerned The pluralism indissociable from a democratic society which hasbeen dearly won over the centuries depends on it That freedom entails interalia freedom to hold or not to hold religious beliefs and to practice or not topractice a religionrdquo Reference may be made to Satvinder S Juss ldquoKokkinakisand Freedom of Conscience Rights in Europerdquo Journal of Civil Liberties 1 no3 (1996) 246ndash50 discussed in Paul M Taylor Freedom of Religion (CambridgeCambridge University Press 2005) 68 See also Buscarini and Others23 Kokkinakis v Greece - 1430788 [1993] ECHR 20 (May 25 1993) at para 31httpwwwbailiiorgeucasesECHR199320html24 Article 9(2) states ldquoFreedom to manifest onersquos religion or beliefs shall besubject only to such limitations as are prescribed by law and are necessary ina democratic society in the interests of public safety for the protection ofpublic order health or morals or the protection of the rights and freedomsof othersrdquo25 Charsquoare Shalom Ve Tsedek v France [GC] no 2741795 sect 73) ECHR2000-VII26 A recent example of this is the case of Ghai R (on the application of) v New-castle City Council amp Ors [2010] EWCA Civ 59 (February 10 2010) httpwwwbailiiorgewcasesEWCACiv201059html I declare an interest I wascounsel in that case See also Venkata Vemuri ldquoThe Death Debaterdquo Open Mag-azine June 8 2009 Available at httpwwwopenthemagazinecomarticlelivingthe-death-debate As Lord Brodie explained more recently ldquoI am left inno doubt but that article 8 may be engaged by an act of the state whichtouches on a familyrsquos freedom to determine what may be described as theplace and modalities of burial of a deceased member of that family to havecustody of the body for the purpose of burial and to participate in anyfuneral ceremony although as was emphasized at first instance in R (Ghai) vNewcastle City Council [2011] QB 591 that can only be the case so long asthe particular matters in question remain entirely within the private andfamily sphererdquo See Lord Brodie in SC Re Judicial Review [2011] ScotCSCSOH_124 sect 36 (2011) Article 8 cases under ldquoprivate and family liferdquo havebecome very controversial in the United Kingdom of late Not least of these isone where it was reported that ldquo[a]n American woman who worships Norsegods has won the right to stay in Britain because of her lsquofamily lifersquo with her boy-friend and his wife Home Office officials told Emily DiSanto 25 that theywould not grant her permission to stay in Britain because the law bans whatare in effect polygamous relationships But now she has won an extraordinarylegal case in which she was allowed to remain here on the basis of her humanright to family life The 25-year-old now shares Alan and Anne-Marie Caulfieldrsquos


8



ownloaded from

modern cosmopolitan democratic societies several religionscoexist with one another in the same polity it is not infrequentlynecessary to place restrictions on freedom to manifest onersquos reli-gion or belief ldquoin order to reconcile the interests of the variousgroups and ensure that everyonersquos beliefs are respectedrdquo27 Suchan approach is compatible with general international law on reli-gious freedom28 and also helps to ensure that the liberal state cancomply with its positive obligation to secure to everyone withinits jurisdiction proper rights and freedoms29

Nevertheless the fact remains that the law recognizes that reli-gious freedom is primarily a matter of individual conscience andthat it does carry with it the ldquofreedom to manifest onersquos religionalone and in private or in community with others in public andwithin the circle of those whose faith one sharesrdquo Indeed thevarious forms that the manifestation of onersquos religion or beliefmay take specifically include ldquopractice and observancerdquo30 So howshould the state stand in relation to securing to everyone withinits jurisdiction the proper rights and freedoms to which they areentitled Should the state for example allow the free wearing ofan article of faith such as the kirpan which has a blade and hasall the appearances of a dagger Or should the state judge it to bepotentially dangerous to the security and safety of others Theorthodox liberal view emphasizes the statersquos role as the neutraland impartial organizer of the exercise of various religions faithsand beliefs This confines the statersquos role to ensuring public orderreligious harmony and tolerance in a democratic society Thestatersquos function is limited in this respect because the state must

marital home in southeast London with his two childrenmdashone by each of thewomen The Americanrsquos lawyer told the court that their religious beliefs barthe Caulfields from divorcing Immigration judges were also told that forcingher to leave the country would affect the wellbeing of Mrs Caulfieldrsquos son aswell as her own young daughter The case is the latest example of how humanrights laws are being used to overturn the decisions of civil servants and minis-ters in immigration cases in what critics say are dubious circumstancesrdquo SeeDavid Barrett and Claire Duffin ldquoPagan Wins lsquoFamily Lifersquo Human RightsCaserdquo The Telegraph (London) December 18 2011 httpwwwtelegraphcouknewsuknewsimmigration8963019Pagan-wins-family-life-human-rights-casehtml27 Sahin sect 106 and Kokkinakis sect 3328 This is clear from article 9(2) which has been cited above and which quali-fies the primary right in article 9(1)29 Article 1 of the European Convention reads ldquoThe High Contracting Partiesshall secure to everyone within their jurisdiction the rights and freedomsdefined in Section I of this Conventionrdquo Available online at httpconventionscoeinttreatyCommunQueVoulezVousaspNT=005ampCL=ENG30 See Charsquoare Shalom Ve Tsedek


9



ownloaded from

not be drawn into assessing the legitimacy of competing religiousbeliefs or the ways in which those beliefs are expressed31 If itmust be drawn it must be drawn only to ensure that there ismutual tolerance between opposing groups32 This means that therole of state authorities is not to remove the cause of tension byeliminating pluralism It is to ensure that the competing groups tol-erate each other33 All along however the state remains neutral

This orthodox view has been endorsed by the European Court ofHuman Rights in Lautsi v Italy34 which involved a challenge tothe state policy of Catholic Italy regarding the presence of religioussymbols in the classrooms particularly crucifixes with a requestthat they be removed35 In a judgment handed down on March 182011 the European Court of Human Rights held that ldquothe decisionwhether crucifixes should be present in State-school classrooms isin principle a matter falling within the margin of appreciation ofthe respondent State Moreover the fact that there is no Europeanconsensus on the question of the presence of religious symbols inState schools speaks in favor of that approachrdquo36 This wasdespite the fact that ldquoit is true that by prescribing the presenceof crucifixes in State-school classroomsmdasha sign which whetheror not it is accorded in addition a secular symbolic value un-doubtedly refers to Christianitymdashthe regulations confer on thecountryrsquos majority religion preponderant visibility in the schoolenvironmentrdquo37

This orthodox view suggests a limited role for the liberal state thatis increasingly untenable given the demands of multiculturalism Itis also a role that fails to recognize the correlation between the indi-vidual right to freedom of religious expression and the state obliga-tion to eliminate all forms of discrimination against minority faithsand to advance the religious rights of all its citizens under the Euro-pean Convention of Human Rights 1950 An understanding of this

31 Manoussakis amp Others v Greece - 1874891 [1996] ECHR 41 (September 261996) httpwwwbailiiorgeucasesECHR199641html also see Hassanand Tchaouch v Bulgaria [GC] no 3098596 sect 78 ECHR 2000-XI Also seeRefah Partisi (The Welfare Party) amp Others v Turkey - 413409841342984134398 [2003] ECHR 87 (February 13 2003) httpwwwbailiiorgeucasesECHR200387html32 The United Communist Party of Turkey amp Others v Turkey - 1939292 [1998]ECHR 1 (30 January 30 1998) httpwwwbailiiorgeucasesECHR19981html33 Serif v Greece - 3817897 [1999] ECHR 169 (December 14 1999) httpwwwbailiiorgeucasesECHR1999169html34 Lautsi35 Ibid sect 1136 Ibid sect 7037 Ibid sect 71


10



ownloaded from

correlation requires the wearing of the kirpan to be understoodfrom the point of view of those Sikh students who would like tofollow this religious practice as an article of their faith For thestate to focus on ldquojustificationrdquo38 as a common defense for a banon grounds of ldquopublic safetyrdquo is to ignore this vital correlationthat is at the heart of the modern law of religious freedom

The case of Sikh kirpan is chosen because throughout theWestern world cases are arising on a regular basis involving Sikhreligious traditionsmdashfrom the wearing of the Sikh bangle39 to theperformance of Sikh funerary rites40 to the preparation of Sikhfood41 to the carrying of the Sikh kirpan42 Most of these havebeen adequately resolved The issue of the Sikh kirpan remainsoutstanding

The Kirpan State and the Law

Western thinking about objects is rooted in a particular philosoph-ical understanding about things in the physical world Such think-ing goes back to antiquity It derives from Aristotlersquos definition of

38 See especially Williamson amp Ors R (on the application of) v Secretary of Statefor Education and Employment amp Ors UKHL 15 2 AC 246 (2005) in which LordNichols explained ldquo[T]he legislature was entitled to take the view that overalland balancing the conflicting considerations all corporal punishment of chil-dren at school is undesirable and unnecessary and that other non-violentmeans of discipline are available and preferable On this Parliament was enti-tled if it saw fit to lead and guide public opinionrdquo (sect 50)39 See Watkins-Singh40 Ghai41 In one case a restauranteur who catered for wedding feasts was held liablefor serving food that contained egg resulting in the death of a Sikh man LordJustice Moore-Bick explained that ldquoMr Bhamra was entitled to rely on MrDubb [the restauranteur] to ensure that he did not suffer harm as a result ofeating food that contained eggrdquo (para 24) and that ldquothe additional requirementthat the food should not contain ingredients that were prohibited by the Sikhreligion In those circumstances he was certainly under a duty to take reasonablecare not to serve dishes containing egg in order to avoid offending against Sikhreligious principlesrdquo (para 25) see Amarjit Kaur Bhamra v Prem Dutt Dubb(Trading as Lucky Caterers) [2010] EWCA Civ 1342 The tribunal in one case recently had to consider whether Amritdhari Sikhs(ie baptized Sikhs) were a separate and distinct group when deciding if therehad been indirect discrimination It held that Sikhs in general were an ethnicgroup for the purposes of the Race Relations Act but that under the Religionor Belief Regulations the Amritdhari Sikhsrsquo requirement to adhere to a strictcode including the wearing of a kirpan was a religious belief that was protectedby the regulations In the event the tribunal held that the banning of the kirpanwas a proportionate means of achieving the legitimate aim of ensuring securityof staff visitors and prisoners in prisons Dhinsa v (1) SERCO (2) Secretary ofState for Justice ET131500209 (2011) See httpwwweordirectcoukdefaultaspxid=407123


11



ownloaded from

things in terms of their ldquoessencesrdquo43 When Aristotle talked aboutthe ldquoessencerdquo of a thing what he meant was that the essence isthe attribute that makes a thing be what it fundamentally is44

According to this philosophical construct a thing has a certainproperty or metaphysical characteristic that defines it with itsessential ldquonaturerdquo These are not the same as the thingrsquos sets ofattributes because attributes are contingent or accidental to thething and45 do not give the thing its particular nature In Westernthinking the kirpan is invested with the same essences and attrib-utes as a blade a dagger or a sword All are possessed of thesame essential qualities that enable us to make sense of it as anobject Each of these objects according to Aristotle has the samespecific power the same function and the same internal relationsas the other In this way each one of these objects is enabled tobe the kind of thing that it is The essence thus defines the thingIt makes it what it is Consequently the kirpan could be definedin terms of its essences Such certainty had much to commend itand Aristotlersquos thinking had such a profound effect on Western phil-osophical traditions that it continued virtually unchanged duringthe scholastic period46

In recent times however the concept of essences has been chal-lenged One influential philosopher of the twentieth centuryEdmund Husserl (1859ndash1938) is accredited with founding the phe-nomenological movement and suggested that the search for essen-ces can only be meaningful when applied to a specific category ofhuman experience47 Other Western philosophers such as WillardVan Orman Quine (1908ndash2000) have argued that only in thedescription of certain phenomena does Aristotlersquos notion of defin-ing a thing in terms of its essences actually work For the mostpart objects do not have essential properties that help to define

43 J L Ackrill Aristotlersquos Categories and De Interpretatione (Oxford OxfordUniversity Press 1975) See also David Charles Aristotle on Meaning andEssence (Oxford Oxford University Press 2002) Charollette Witt Substanceand Essence in Aristotle An Interpretation of Metaphysics VII ndashIX (Ithaca NYCornell University Press 1989)44 Aristotle Metaphysics (London Penguin 1998) 16845 Steven K Strange Porphyry On Aristotle Categories (Ithaca NY CornellUniversity Press 1992)46 See N Kretzmann Anthony Kenny and Jan Pinborg Cambridge History ofLater Medieval Philosophy (Cambridge Cambridge University Press 1982)Also see D Chalmers ldquoIs There Synonymy in Occamrsquos Mental Languagerdquo inThe Cambridge Companion to Ockham ed Paul Vincent Spade (CambridgeCambridge University Press 1999)47 See especially Jitendranath Mohanty The Philosophy of Edmund Husserl(New Haven CT Yale University Press 2008) Also see Edmund Husserl Crisisof European Sciences and Transcendental Phenomenology (Evanston IL North-western University Press 1970)


12



ownloaded from

them48 If this is correct then one can see the meaning of the kirpanhaving a very different meaning from that of a knife a blade or adagger because the kirpan is not used to threaten molest orharm anyone but stands as an article of faith for the Sikh peopleMetaphysical assertions should therefore not be used to describean essence as the necessary property of real objects such as thekirpan because if we do this we ignore our experience of theobject in question which in the case of the kirpan is entirelybenign Eastern thinking takes exactly that view and thesemodern philosophical tenets are actually more akin to the differentforms of Eastern thought that believe that all phenomena are devoidof essence Indeed a Sikh would be surprised if not alarmed at anysuggestion that the kirpan had any malign connotations becausethe very root of Eastern thought rejects antiessentialism From anEastern perspective a Sikh who wears a kirpan is not wearing itbecause it is a weapon he or she is wearing it because it is part oftheir officially prescribed religious uniform Yet to an uninitiatedWestern mind it may be perceived as a weapon

To say that the kirpan is intrinsically dangerous is however tocontinue to subscribe to Aristotlersquos philosophy of essences whichno doubt still retains an enduring effect on Western thought It ishowever apt to lead to serious misunderstandings of the kirpanOne could argue that a knife is dangerous or that scissors are dan-gerous but they are not inherently so Hands may be dangerous Aknife may be used for cooking purposes or it may be used to killScissors may be used to cut paper in the classroom or they maybe used to kill They rarely are In the same way our hands maybe used to affect greetings to eat our food to embrace friends orto strangle our foes That does not make our hands inherently dan-gerous Neither does it make our hands have an inherent essenceanymore than a pair of scissors do The fact is that the meaningof an object can only be understood in context of its particularpurpose and use Outside its context it is devoid of meaning Thisis how Eastern thought views an object The meaning of a kirpancan only be understood in the context of its religious culturaland historical use Without this context it is apt to be misunder-stood as a conventional knife dagger or sword Yet it is none ofthese To ban it on this basis is illiberalism of the worst kind Itdoes nothing to promote individual freedomsmdashand certainly notthe freedoms of individual believers One might just as well banknives in the kitchen scissors in the classroom or the use of ourhands outside the home

48 Willard Van Orman Quine Word and Object (Cambridge MA MIT Press1960)


13



ownloaded from

It is not insignificant that in Lautsi49 the Italian state in prescrib-ing the presence of crucifixes in state-school classrooms argued fora contextually attuned meaning of religious practice wherebyregard must be had ldquoto the meaning it should be understood toconvey It took the view in particular that although the crucifixwas undeniably a religious symbol it was a symbol of Christianityin general rather than of Catholicism alone so that it served as apoint of reference for other creedsrdquo In that case Italy argued thatldquothe crucifix was a historical and cultural symbol possessing onthat account an lsquoidentity-linked valuersquo for the Italian people inthat it lsquorepresent[ed] in a way the historical and cultural develop-ment characteristic of [Italy] and in general of the whole ofEurope and [was] a good synthesis of that developmentrsquordquo If thiscan be said of the religious artifacts of majority populationsthere is no reason why it cannot also logically be said of minoritypopulations If crucifixes are acceptable because of the ldquomeaningrdquothat they ldquoconveyrdquo then kirpans should also be acceptablebecause of the meaning that they convey If there is an ldquoidentity-linked valuerdquo in crucifixes the same is the case for the kirpan

This is not to say that the liberal state should actually encourageparticular religious practices If the liberal state is based onsecular ideals it may have real difficulties in doing so But it doesmean that if particular individuals within the liberal state want toadhere to particularly well-known religious practices within theirfaith they should be allowed to follow their traditions unlessthere is a clear reason for regarding a practice as being harmful tothe society in which they live Wearers of the kirpan in a particularstate in the world somewhere may conceivably be prone to ldquomisus-ingrdquo it and endangering life in general If this were so there wouldbe a case for introducing restrictions including an outright banbut at present no such case appears to have been made anywherein the world50

Yet the kirpan is bound to struggle for legal recognition insociety It will struggle in common law countries such as theUnited Kingdom Canada and Australia It will struggle in Europeansociety In September 2011 ldquothousands of Sikhs filled Parliament

49 See Lautsi sect 15 For an extensive discussion of Lautsi see Dominic McGol-drick ldquoReligion in the European Public Square and in the European Public LifemdashCrucifixes in the Classroomrdquo Human Rights Review 11 no 3 (2011) 451ndash50250 Indeed as discussed in Queensland the anti-discrimination commissioneractually tabled a submission to parliament to the effect that the governmenthad provided no evidence of any school attacks involving a kirpan or other reli-gious knife see Daniel Hurst ldquoSikhs Play Down School Knife Fearsrdquo BrisbaneTimes May 24 2011 httpwwwbrisbanetimescomauqueenslandsikhs-play-down-school-knife-fears-20110523-1f0guhtmlixzz1fQdLnaHT


14



ownloaded from

Square in London yesterday for a protest against the lsquointimidationand disrespectrsquo of their faith at European airportsrdquo51 The reasonthat the Sikh kirpan is deemed unacceptable in these Western soci-eties is that its contextual significance is not always appreciated inthat society Many choose to see it as nothing more than an ordinaryblade or a dagger Yet the kirpan is not unique as an example of amanifestation of belief All religious beliefs struggle from time totime This is because as the European Court of Human Rightswhich enshrines the aspirational and foundational values of theEuropean community has said ldquoIt is not possible to discernthroughout Europe a uniform conception of the significance of reli-gion in societyrdquo52 This makes it difficult for the state to devise over-arching principles of universal application for the regulation ofreligion This is why the rights language with respect to religiousclaims often fails to yield solutions and why a pragmatic andculture specific approach is often called for

The difficulty is also unsurprising given that the meaning orimpact of the public expression of a religious belief will differaccording to time and context53 Thus the European Court ofHuman Rights has taken the aspirational view that the nationaldecision-making body must be given a ldquospecial importancerdquo incases in which questions concerning the relationship betweenstate and religions are at stake because these are matters onwhich opinion in a democratic society may reasonably differwidely54 The contribution of a transnational court like the Euro-pean Court of Human Rights of values which are not only founda-tional but can be applied in a detached and disinterested way fromafar can be all the more effective for that These values can alsohelp inform the resolution of the religious dispute by a nationalcourt because of the jurisprudence that has been developed overlong years It is for this reason that European societies have thrownup a number of cases for consideration by the European Court ofHuman Rights some no more than a parody and bordering on theridiculous They nevertheless help demonstrate the difficulty that aliberal democratic state may have in regulating religion One in July2011 involved an Austrian Niko Alm who won the right to be photo-graphed wearing a pasta strainer for his driving license on grounds of

51 Ellen Branagh ldquoSikhs Protest at lsquoDisrespectrsquo of Turban Searches at Air-portsrdquo The Independent September 26 201152 Otto-Preminger-Institut v Austria - 1347087 [1994] ECHR 26 (September20 1994) httpwwwbailiiorgeucasesECHR199426html53 See for example Dahlab v Switzerland decision of February 15 2001 (no4239398 ECHR 2001- V)54 See for example Charsquoare Shalom Ve Tsedek sect 84 Also see Wingrove v theUnited Kingdom no 1741990 sect 58 ECHR 1996


15



ownloaded from

religious freedom Alm said he belonged to the Church of the FlyingSpaghetti Monster which lampooned religion55

When it comes to regulating the wearing of religious symbols ineducational institutions authorities face a special challengebecause schools will invariably adhere to a strict uniform codethat is designed to deter gang culture and to create a safe environ-ment for all its pupils Laudable as such a policy is its strict appli-cation by a school authority may still infringe equal treatmentlaws Such was the case of the 11-year-old boy in 2009 in G vSt Gregoryrsquos Catholic Science College56 He was turned away onhis first day at secondary school in London for wearing his hairin cornrows57 when the school only allowed ldquoa conservativelsquoshort back and sidesrsquo hairstyle for boys amid concerns thatother styles could encourage lsquogang culturersquordquo In June 2011 theboy won his case at the High Court after a judge ruled theschoolrsquos policy resulted in ldquoindirect racial discriminationrdquo withJustice Collins ruling that that although the schoolrsquos ldquoshort backand sidesrdquo policy was ldquoperfectly permissiblerdquo it should havetaken into account individual pupilsrsquo family traditions The boyhad not cut his hair since birth and wore his hair in cornrowsas part of a family tradition in which all the male members ofhis family wore their hair in cornrows The judge observed thatldquothere is evidence that there are those of African-Caribbean eth-nicity who do for reasons based on their culture and ethnicityregard the cutting of their hair to be wrong and so they need itto be kept in cornrowsrdquo58

This ruling was given despite the headmaster asserting in courtthat ldquohaircuts were often lsquobadgesrsquo of gang culturerdquo59 This was notso however for the boy himself who explained ldquoI really like myhair and itrsquos been that way all my life This problem at school was

55 Matthew Day ldquolsquoPastafarianrsquo Wins Religious Freedom Right to Wear PastaStrainer for Driving Licencerdquo The Telegraph July 13 2011 httpwwwtelegraphcouknewsnewstopicshowaboutthat8635624Pastafarian-wins-religious-freedom-right-to-wear-pasta-strainer-for-driving-licencehtml Itwould appear that the Spaghetti Church was founded in 2005 in oppositionto pressure on the Kansas school board in the United States to teach thetheory of intelligent design in biology class as an alternative to evolution Keybeliefs of pastafarians state that the world was created by the Flying SpaghettiMonster but owing to the monster being inebriated at the time of creation ithas a flawed design Pastafarians also believe heaven has a beer volcano and afactory producing strippers56 G v St Gregoryrsquos Catholic Science College (Rev 1) [2011] EWHC 1452 (Admin)(June 17 2011) httpwwwbailiiorgewcasesEWHCAdmin20111452html57 Ibid sect 258 Ibid sect 32 57ndash5859 Ibid sect 23


16



ownloaded from

the first time me and my mum ever talked about my hair itrsquos sonormal to us I really like my hair my brother and dad have corn-rows and we all like it I really donrsquot want to cut it off This was thefirst time I had to ask the question lsquowhatrsquos wrong with my hairrsquordquo60

The case was widely reported61 Given that the tradition of wearinglong uncut hair also exists in other cultures it is unsurprising thatthe judge also added that ldquoRastafarians or Sikhs who do not cuttheir hair will be permitted not to conformrdquo to a school policy onhairstyles62

The reference to Sikhs is interesting The level of accommodationfor Sikh religious rights in the United Kingdom is unmatched in theworld If proof were needed it is found in the UK governmentrsquos deci-sion to allow Sikh athletes and spectators to wear ceremonialdaggers around the London 2012 Olympic sites even as securitywill be so tight at all Olympic venues that the authorities will beldquoprepared to deploy surface-to-air missiles to protect Londonduring the eventrdquo The proviso states ldquothat Sikhs will be allowedto take in a sheathed kirpan as long as it is worn beneath their cloth-ing and if they can prove that they are adhering to four other articlesof faithrdquo63

Clearly not all liberal democratic states can afford the same lati-tude to Sikh rights There is a large degree of diversity in theapproach taken by national authorities to the rights of particularminority communities64 When it comes to something as unfamiliar

60 Ibid sect 3361 Matthew Taylor ldquoSchoolrsquos Ban on Boyrsquos Cornrows Is lsquoIndirect Racial Discrim-inationrsquordquo The Guardian June 17 2011 httpwwwguardiancoukuk2011jun17school-ban-cornrows-indirect-discrimination See also ldquoSt GregoryrsquosCollege Cornrows Rule Discriminatedrdquo BBC News June 18 2011 httpwwwbbccouknewsuk-england-london-1380310662 G v St Gregoryrsquos Catholic Science College sect 863 Josie Ensor ldquoLondon 2012 Sikhs Allowed to Carry Daggers at OlympicsrdquoThe Telegraph November 20 2011 httpwwwtelegraphcouksportolympics8902202London-2012-Sikhs-allowed-to-carry-daggers-at-Olympicshtml The five articles of the Sikh faith are discussed later64 See Charsquoare Shalom Ve Tsedek in which the court observed that ldquoeven sup-posing that this restriction could be considered an interference with the right tofreedom to manifest onersquos religion the Court observes that the measure com-plained of which is prescribed by law pursues a legitimate aim namely protec-tion of public health and public order in so far as organisation by the State ofthe exercise of worship is conducive to religious harmony and tolerancerdquo (sect84) Even more memorably the court explained this principle in Wingrove asfollows ldquo[A] wider margin of appreciation is generally available to the Contract-ing States when regulating freedom of expression in relation to matters liable tooffend intimate personal convictions within the sphere of morals or especiallyreligion Moreover as in the field of morals and perhaps to an even greaterdegree there is no uniform European conception of the requirements of lsquotheprotection of the rights of othersrsquo in relation to attacks on their religious


17



ownloaded from

to the western mind as the Sikh Kirpan this may be more easilyunderstood in the United Kingdom than in Quebec This isbecause the English have a longer association going back to colonialtimes with Sikhs with the largest Sikh population outside Indialiving in the United Kingdom leading to a tendency for greateraccommodation Thus domestic rules in the sphere of religion willinevitably vary from one country to another They will vary accord-ing to national traditions and the requirements imposed by theneed to protect the rights and freedoms of others and to maintainpublic order65

Thus the European Court of Human Rights in its overarching prin-ciples of general applicability has taken the firm view that ldquothechoice of the extent and form such regulations should take mustinevitably be left up to a point to the State concerned as it willdepend on the domestic context concernedrdquo66 This approach

convictions What is likely to cause substantial offence to persons of a particularreligious persuasion will vary significantly from time to time and from place toplace especially in an era characterised by an ever growing array of faiths anddenominations By reason of their direct and continuous contact with the vitalforces of their countries State authorities are in principle in a better positionthan the international judge to give an opinion on the exact content of theserequirements with regard to the rights of others as well as on the lsquonecessityrsquoof a lsquorestrictionrsquo intended to protect from such material those whose deepestfeelings and convictions would be seriously offendedrdquo (sect 58)65 See Wingrove in which the court explained that ldquoblasphemy legislation isstill in force in various European countries It is true that the application ofthese laws has become increasingly rare and that several States have recentlyrepealed them altogether In the United Kingdom only two prosecutions con-cerning blasphemy have been brought in the last seventy years Strong argu-ments have been advanced in favour of the abolition of blasphemy laws forexample that such laws may discriminate against different faiths or denomina-tionsmdashas put forward by the applicantmdashor that legal mechanisms are inad-equate to deal with matters of faith or individual beliefmdashas recognised by theMinister of State at the Home Department in his letter of 4 July 1989 However the fact remains that there is as yet not sufficient common groundin the legal and social orders of the member States of the Council of Europeto conclude that a system whereby a State can impose restrictions on the prop-agation of material on the basis that it is blasphemous is in itself unnecessaryin a democratic society and thus incompatible with the Conventionrdquo (sect 57)66 See Gorzelik amp Others v Poland - 4415898 [2004] ECHR 73 (February 172004) httpwwwbailiiorgeucasesECHR200473html in which the courtexplained ldquoLikewise practice regarding official recognition by States ofnational ethnic or other minorities within their population varies fromcountry to country or even within countries The choice as to what form suchrecognition should take and whether it should be implemented through interna-tional treaties or bilateral agreements or incorporated into the constitution or aspecial statute must by the nature of things be left largely to the State con-cerned as it will depend on particular national circumstancesrdquo (sect 67) Similarly


18



ownloaded from

ascribes a ldquomargin of appreciationrdquo to the State away from thesupervising eye of a supranational court like the European Courtof Human Rights The doctrine of the ldquomargin of appreciationrdquo oran area of discretion embraces both domestic law and the domesticdecisions applying it and it would apply most widely with the reg-ulation of religious practices in schools and other public placesThat is not however to say that domestic authorities have carteblanche to do as they please An example of the importance of thecontextual approach in the national setting over the supranationalinstitutional structure is seen in the acceptance that the role ofthe European Court of Human Rights is a residual one to determinewhether the measures taken at the national level were justified inprinciple and were proportionate in all the circumstances of thecase67

Whether national measures with respect to the wearing of theKirpan can be determined as justifiable by the European Courtwill depend on the way the balance is struck in the context of indi-vidual interests the need to protect the rights and freedoms ofothers the preservation of public order and the public interest insecuring civil peace and true religious pluralismmdashall of which arevital to the survival of a democratic society Whether it does sowill depend on how it regards what is at stakemdashnamely the needto protect the rights and freedoms of others to preserve publicorder and to secure civil peace and true religious pluralismwhich are vital to the survival of a democratic society68

in Murphy v Ireland - 4417998 [2003] ECHR 352 (July 10 2003) httpwwwbailiiorgeucasesECHR2003352html in which the court upheld thedomestic High Court pointing out ldquothat Irish people with religious beliefstended to belong to a particular church so that religious advertising from a dif-ferent church might be considered offensive and open to the interpretation ofproselytism Indeed the High Court pointed out that it was the very fact thatan advertisement was directed towards a religious end which might have beenpotentially offensive to the publicrdquo (sect 73)67 See Manoussakis and Others in which the court explained ldquoAs a matter ofcase-law the Court has consistently left the Contracting States a certain marginof appreciation in assessing the existence and extent of the necessity of an inter-ference but this margin is subject to European supervision embracing both thelegislation and the decisions applying it The Courtrsquos task is to determinewhether the measures taken at national level were justified in principle and pro-portionaterdquo (sect 44)68 See Kokkinakis sect 31 Also see Manoussakis and Others in which the courtmade it quite clear that ldquothe restrictions imposed on the freedom to manifestreligion [by the provisions in that particular case] call for very strict scrutinyby the Courtrdquo (sect 44) Moreover in Casado Coca v Spain - 1545089 [1994]ECHR 8 (February 24 1994) httpwwwbailiiorgeucasesECHR19948html which concerned the right of members of the Bar to advertise their


19



ownloaded from

Is it the case however that certain religious practices such as thewearing of religious symbolsmdashfrom the Islamic headscarf to theSikh kirpanmdashmay be deemed incompatible with societal concernsover civil peace and the rights and freedoms of others When wespeak about the ldquorights and freedoms of othersrdquo we are in therealm of rights Religious questions are not always best formulatedas rights questions Where they are they stand poised against thestate The state traditionally has chosen to be neutral But neutralityis not always the best way for a state to resolve its religious tensionsIndeed European human rights law does not prevent individualstates from making their own decisions on key areas of socialpolicy because this would normally fall within their ldquomargin of appre-ciationrdquo a concept that is similar to the doctrine of subsidiarity inthat it gives individual states a measure of freedom to determinesome matters as they will free from the supervising eye of the Stras-bourg court This is because of the differing philosophical culturaland historic traditions existing between a member state and a trans-national court thus allowing it to interpret the Convention differentlyfrom the European Court of Human Rights This is a fundamentalprinciple of European law and it is clear from a number of cases

The evidence suggests that the state is not always neutral and it isartificial to expect it to be so In Dahlab v Switzerland69 a teacherrsquoswearing of a headscarf in front of a class of small children was con-sidered by the European Court of Human Rights to be open to inter-pretation as a ldquopowerful external symbolrdquo that could have some kindof proselytising effect given that it was ostensibly imposed onwomen by a religious precept a precept that was hard to reconcile

services the court said ldquo[T]he countryrsquos courts are in a better position than aninternational court to determine how at a given time the right balance can bestruck between the various interests involved namely the requirements of theproper administration of justice the dignity of the profession the right of every-one to receive information about legal assistance and affording members of theBar the possibility of advertising their practicesrdquo (sect 55)69 Dahlab in which the court declared inadmissible a complaint by a primaryschool teacher who had been prohibited from wearing an Islamic headscarf ather school The court acknowledged the margin of appreciation afforded tothe national authorities when determining whether this measure was ldquoneces-sary in a democratic societyrdquo and explained its role in these terms ldquoTheCourtrsquos task is to determine whether the measures taken at national levelwere justified in principlemdashthat is whether the reasons adduced to justifythem appear lsquorelevant and sufficientrsquo and are proportionate to the legitimateaim pursued In order to rule on this latter point the Court must weigh therequirements of the protection of the rights and liberties of others against theconduct of which the applicant stood accused In exercising the supervisoryjurisdiction the court must look at the impugned judicial decisions againstthe background of the case as a wholerdquo (sect 11)


20



ownloaded from

with the principle of gender equality in European societies The Euro-pean Court of Human Rights considered that the wearing of theIslamic headscarf could not easily be reconciled with the messageof tolerance respect for others and equality and nondiscriminationthat all teachers in a democratic society should convey to theirpupils so the Swiss authorities were right to object to it In Karadu-man v Turkey70 specific measures had been taken by Turkish uni-versities to prevent certain fundamentalist religious movementsfrom exerting pressure on students if they did not practice their reli-gion in the required manner or if they belonged to another religionand the European Court of Human Rights found these measures tobe justified under article 9 (2) of the convention

The principle that these cases establish is that in the interests ofensuring peaceful coexistence between students of various faithsand to protect public order and the beliefs of others educationalinstitutions may regulate the manifestation of the rites andsymbols of a religion by imposing restrictions as to the place andmanner of such manifestation71 In this regard the convention insti-tutions have repeatedly affirmed the idea that in a democraticsociety the state is entitled to place restrictions on religious practiceand conduct if they are incompatible with the specified pursuedaims that are necessary for the survival of a democratic society72

This debunks the idea of state neutrality It also debunks the ideathat rights are necessarily the most practical way to protect long-held religious practices The religious accommodation of the Sikhkirpan shows the importance of local practices to be more

70 Karaduman v Turkey no 1627890 74 DR 93 (1993) The applicant wasdenied a certificate of graduation because a photograph of her without a head-scarf was required and she was unwilling for religious reasons to be photo-graphed without a headscarf The commission found (at p 109) nointerference with her article 9 right because (at p 108) ldquoby choosing to pursueher higher education in a secular university a student submits to those univer-sity rules which may make the freedom of students to manifest their religionsubject to restrictions as to place and manner intended to ensure harmoniouscoexistence between students of different beliefsrdquo71 This principle was also enunciated in Refah Partisi and Others in which thecourt explained ldquoIn a country like Turkey where the great majority of the pop-ulation belong to a particular religion measures taken in universities to preventcertain fundamentalist religious movements from exerting pressure on stu-dents who do not practice that religion or on those who belong to another reli-gion may be justified under Article 9 sect 2 of the Convention In that contextsecular universities may regulate manifestation of the rites and symbols ofthe said religion by imposing restrictions as to the place and manner of suchmanifestation with the aim of ensuring peaceful co-existence betweenstudents of various faiths and thus protecting public order and the beliefs ofothersrdquo (sect 95)72 See also Sahin


21



ownloaded from

important than rights per se It also shows how the state in theUnited Kingdom has not been neutral on this issue and has thushelped develop a climate in which the wearing of the kirpan hasbeen accepted by society at large This we may now consider

The Kirpan and the Sikhs in the United Kingdom

Sikhs living in the United Kingdom have little to complain about andmuch to be thankful for The state has gone out of its way to providethem with religious exemptions73 from facially neutral and gener-ally applicable laws which the UK government has passed in thepublic interest and to which the general population as a whole issubject74 but to which Sikhs themselves are not These exemptionsare long standing They go back at least a generation The questionis whether they should apply as much in the field of education asthey do in the public sphere in general When one looks at healthand safety legislation it is clear that already the degree offreedom enjoyed by UK Sikhs (and other minorities) is a departurefrom what is the norm in most societies One of the oldest andmost hard-won exemptions was the Motor Cycle Crash Helmet (Reli-gious Exemption) Act 197675 which exempts a turbaned Sikh fromwearing a crash helmet when riding a motorcycle76 This exemption

73 Equality and Human Rights Commission Guidance On the Wearing of SikhArticles of Faith in the Workplace and Public Spaces httpwwwequalityhumanrightscomuploaded_filespublicationssikh_articles_of_faith_guidance_finalpdf74 For a measure see Tom Peterkin ldquoSymbols of Controversyrdquo The TelegraphJuly 30 2008 httpwwwtelegraphcouknews2471337Symbols-of-controversyhtml75 Section 2(A) of the act ldquoexempts any follower of the Sikh religion while he iswearing a turban from having to wear a crash helmetrdquo As Lord Aveburyexplained in the House of Lords on October 4 1976 ldquoThe Bill has the verysimple purpose of exempting Sikhs from the requirement of wearing crashhelmets when riding motorcycles In considering the Bill there are three ques-tions which we should evaluate first is the wearing of the turban an essentialarticle of the Sikh faith Secondly if so what special arrangements have beenmade in the United Kingdom and in other countries for Sikhs to wear theturban in circumstances where others must wear some other type of headgearThirdly in the light of the answers to the first two questions should the argu-ments for religious freedom outweigh those of public policy which led to thecompulsory introduction of crash-helmets in the 1972 Road Traffic Actrdquo Seethe relevant debates in the House of Lords at httphansardmillbanksystemscomlords1976oct04motor-cycle-crash-helmets-religious The relevantdebates in the House of Commons are available online at httpwwwgurmatinfosmssmspublicationstheturbanvictorychapter3 Also see httpwwwjusticeorgukdatafilesevents17forpdf76 One assumes that what is evidently not permitted is the wearing of both aturban and a crash helmet


22



ownloaded from

was confirmed some fifteen years later by the Road Traffic Act198877

Since then other exemptions have followed including those relat-ing to the wearing of a Kirpan These also debunk the myth of stateneutrality Since 1988 Sikhs have been allowed to carry a kirpan78

of more than three inches long in public as a religious symbolThis is the second generally well-known exemption It falls underthe Criminal Justice Act 198879 which safeguards the rights ofthe Sikhs to carry the kirpan on grounds that it is deemed a neces-sary part of their religion It is quite clear from this that the recog-nition of the Sikh kirpan as a necessary part of their faith is alreadywell enshrined in UK domestic law This is despite the fact that spe-cific provisions in the Criminal Justice Act 1988 refer to any articlethat has a blade or point or is sharply pointed80 except for a foldingpocket knife A folding pocket knife is one that has a cutting edge ofno more than three inches in length and that must be readily fold-able at all times81 Further under the Offensive Weapons Act199682 it is permissible for a Sikh to carry a kirpan with a bladefor religious reasons83 (though other reasons are also includedunder the act if they are cultural or work related) The kirpan exemp-tion is all the more remarkable given that the definition of offensive

77 See section 16(2) of the Road Traffic Act 1988 which reads ldquoA requirementimposed by regulations under this section shall not apply to any follower of theSikh religion while he is wearing a turbanrdquo Available online at httpwwwlegislationgovukukpga198852section16 Also see httpwwwopsigovukactsacts1988ukp78 For a history background of the kirpan and its place in British society seehttpbscforgdocumentsThe_Kirpan_Final_version[1]pdf79 Section 139 deals with ldquoOffence of having article with blade or point inpublic placerdquo Available online at httpwwwlegislationgovukukpga198833section13980 Section 139(2) states ldquoThis section applies to any article which has a bladeor is sharply pointed except a folding pocket kniferdquo81 Section 139(3) ldquoapplies to a folding pocket knife if the cutting edge of itsblade exceeds 3 inchesrdquo Available online at httpwwwlegislationgovukukpga198833section13982 The preamble of this statute states that it is ldquo[a]n Act to make provisionabout persons having knives other articles which have a blade or are sharplypointed or offensive weaponsrdquo and section 3 makes provision for anldquo[i]ncreased penalty for offence of having article with blade or point in publicplacerdquo whereas section 4 makes provision for an ldquo[o]ffence of having articlewith blade or point (or offensive weapon) on school premises etcrdquo Seehttpwwwlegislationgovukukpga199626datapdf Also see httpwwwlegislationgovukukpga199626contents83 Under sesction139 (5)(b) ldquoit shall be a defence for a person charged with anoffence under this section to prove that he had the article with him for reli-gious reasonsrdquo Available online at httpwwwlegislationgovukukpga198833section139


23



ownloaded from

weapons under the Prevention of Crime Act 1953 includes ldquoanyarticle made or adapted for causing injury to the person orintended by the person having it with himher for such use byhimherrdquo84 Thus the state in the United Kingdom has fosteredcommunal harmony by taking active steps to respect the religioustraditions of faith communities that are not framed as ldquorightsrdquoThe law has been used as an instrument to protect religiousbeliefs and practices It is therefore hardly surprising in these cir-cumstances that cases involving the wearing of kirpans by Sikhsarise frequently in the public arena in the United Kingdombecause the general laws are quite clear they do not allow knivesblades or a sharply pointed object to be carried in public Yet itis equally clear although generally not well known that Sikhshave an exemption to wear the kirpan under local law Thus in2008 a Sikh employee at an Asda Supermarket was told that hecould return to work after being asked by managers to eitherremove his kirpan or risk losing his job85 School however involveschildren The question therefore is if these exemptions in practiceshould be extended to schools and colleges when students turn upwearing the kirpan It is not necessarily the case that because thereis a more general exemption for kirpans applying to the adult pop-ulation that it ought automatically also apply to schools where thesafety of children is an issue From what follows it is clear that thechallenge for schools is an altogether more difficult one This chal-lenge can best be met not through the language of rights that standjuxtaposed against a state that is avowedly neutral in stancemdashbutby a contextually attuned approach to understanding the meaningsof a religious practice

The Kirpan and the School

When in 2009 at the start of the new school term afourteen-year-old Sikh boy was ldquobanned from wearing a religiousdaggerrdquo by the governors at his North London school in Finchleyit was not on grounds of religious intolerance Instead the boywas ldquotold not to carry the 13 cm kirpan blade after governorsruled it was a health and safety riskrdquo although it needs to be recog-nized that ldquo[t]hey suggested the boy should wear a 5 cm version ofthe knife welded shut but this was rejected by the family on thegrounds it would not be a genuine Kirpanrdquo In a detailed statement

84 See section 1(4) which is available online at httpwwwlegislationgovukukpgaEliz21-214datapdf85 See httpwwwsikhsangatcomindexphptopic38514-discrimination-of-sikh-employee-at-asda-comes-to-an-end


24



ownloaded from

the Board of Governors explained how ldquo[t]he schoolrsquos governingbody has spent the past two years trying to reach an agreementwith the family and to establish the appropriate nature of a religiousartifact that can safely be brought into schoolrdquo adding howldquo[d]uring this period of time along with the local authority wehave examined potential compromises after looking at how thisissue has been dealt with in other schools education authoritiesand elsewhere within the Sikh community and taken legal advicerdquoThe case failed to get to court because of funding difficultiesWhat facts have emerged are as follows86

In August 2007 when the Sikh boy was twelve years old he tookamrit (holy water) and in a formal Sikh initiation ceremony wasofficially baptized He thereby became a Khalsa Sikh (pure one)and as such he was thereafter required to wear the Five Ks Theseare for a Sikh both internal and external commitments They arekesh (uncut hair) kangha (comb) kirpan (sword) kacchera(knee-length cotton breaches) and Kara (steel or iron bangle)After Amrit the Sikh boyrsquos family contacted the school to informthem that he had become a baptized sikh and that as such hewould be wearing a Kirpan The school invited the family to ameeting Following discussions the family agreed to find a kirpanthat was smaller and more discreet than the one the boy had origi-nally worn A second meeting followed At that meeting the schoolconsidered whether the boy could wear a symbolic kirpan Both theboy and his family indicated that this would not constitute a kirpanThis would therefore not be acceptable to them The boy had under-gone baptism and he had to live and dress appropriately as aKhalsa Sikh The school agreed nevertheless that the boy couldcontinue to play sports including football and rugby which hedid At yet another meeting the following year however theschool again raised the possibility that the boy wear a symbolickirpan This would be a miniature kirpan worn around the boyrsquosneck Both the Sikh boy and his family indicated once again thatthis would not be acceptable to a baptized Khalsa Sikh Theschool then raised the issue of participation in sports and sug-gested that the boy remove his kirpan during the playing ofsports He could hand the kirpan to a teacher or to the referee forsafekeeping Alternatively he could participate in a noncontactrole such as a referee The boy who was a keen sportsman couldnot agree to the removal of his kirpan in any circumstances Hewas therefore confined to a noncontact role in all sporting activ-ities At yet another meeting it was agreed that the boyrsquos family

86 The facts cited herein have been imparted to the author by the family of theSikh boy


25



ownloaded from

would attempt to design a holster in which their son could carry hiskirpan in a way that would mollify the schoolrsquos safety concerns

The family appears to have submitted an initial design in Septem-ber 2008 They submitted a second design in January 2009 Duringthese meetings they proposed a holster made of a toughened nylonD30 material This would be worn under the boyrsquos clothes andunder his arm During the September 2008 meeting the boyrsquosfamily appeared to have shown the school a kirpan sheath thatthey had had made in India They hoped that this would complywith the schoolrsquos requirements that the kirpan not constitute asafety hazard to other children In the meantime the boy startedto wear his kirpan in this sheath In April 2009 the chair of gover-nors of the school wrote to the boyrsquos parents to say that theldquohealth and safety and other concerns outweigh the wishes and feel-ings of [the boy] and his family in relation to the wearing of thekirpan at schoolrdquo and that his current choice of kirpan could notbe accommodated without further modification

It was clear that none of the parties involved regarded the ultimateresolution to have been a satisfactory one A letter to the boyrsquosfamily from Diana Johnson the parliamentary under-secretary ofstate for schools stated ldquoWe expect disputes to be resolvedlocally The department does not usually intervenerdquo The best thatcould be done was to say that ldquo[i]f challenged it would ultimatelybe for the courts to decide if the school is justified in restrictingthe wearing of the Kirpan in this caserdquo87 However if the state hasto leave it to litigation in the courts to resolve issues of such funda-mental importance rather than actively help foster conditions forthe expression of minority beliefs then this hardly inspires confi-dence among its citizenry The boy had to be taken out of stateschool and was eventually educated privately88

The case attracted widespread attention89 and continued to do sofor several months thereafter90 when a major broadsheet helpfully

87 Lowe ldquoSikh Dagger Banned by Finchley Schoolrdquo Also see Martha LindenldquoSchool Bans Sikh Pupil over Holy Daggerrdquo The Independent October 132009 httpwwwindependentcouknewseducationeducation-newsschool-bans-sikh-pupil-over-holy-dagger-1802007html88 Useful information is provided on how to deal with future problems in ldquoTheKirpan A Submission to the Department of Communities and Local Govern-ment (UK) April 2009rdquo produced by the British Sikh Consultative Forum Avail-able online at httpbscforgdocumentsThe_Kirpan_Final_version[1]pdf89 See Linden ldquoSchool Bans Sikh Pupil over Holy Daggerrdquo Also see ldquoBoys SikhDagger in School Banrdquo90 Matthew Moore ldquoThe KirpanmdashSikh Dagger Banned by Some SchoolsrdquoThe Daily Telegraph February 8 2010 httpwwwtelegraphcouknewsnewstopicsreligion7189903The-Kirpan-Sikh-dagger-banned-by-some-schoolshtml


26



ownloaded from

explained to a largely secular91 and unsuspecting British public thatldquo[d]espite the military connotations of a dagger Sikhs insist that theKirpan is primarily a statement of their commitment to peace as ittraditionally discouraged attacks on the defencelessrdquo and thatldquothere are strict limits to their use as a weaponrdquo It explained thatldquo[t]he daggers were made mandatory for everyone who goesthrough the Sikh equivalent of baptism in 1699 following a com-mandment by Gobind Singh the tenth Sikh lsquogurursquo or leaderrdquo sothat ldquo[t]ogether with the other four articles of faithmdashKesh (uncuthair) Kanga (wooden comb for holding hair in place under aturban) Kara (iron bracelet) and Kachera (specific cotton under-wear)mdashthe Kirpan is an outward symbol of a Sikhrsquos religiousbeliefrdquo Thus the broadsheet set out to give a context and a partic-ular religious dimension to the Sikh kirpan adding that ldquo[t]he cere-monial daggers can be up to several feet long but Sikhs in the Westgenerally wear a five-inch iron version that fits unobtrusivelybeneath outer clothingrdquo It was further explained that ldquo[t]hedaggers are exempt from British laws banning the carrying ofknives in public places because of their religious significancerdquo92

There is controversy as to exactly how a baptized Sikh should carrythe kirpan in public Surprisingly the controversy exists as muchamong Sikhs as among others The well-known retired Sikh judgeSir Mota Singh QC publicly supported the case of thefourteen-year-old Sikh school boy remarking ldquoI wear my Kirpanand Irsquove always worn it for the last 35 to 40 years even when I wassitting in court or visiting public buildings including BuckinghamPalacerdquo93 Sir Mota Singh QC is fortunate In February 2011 the legis-lative assembly of Canadarsquos French-speaking Quebec province passeda unanimous motion banning the kirpan from its premises with all113 members of the assembly including Premier Jean Charest

91 It is remarkable how in a generation Britain has become a secular countryThe British Social Attitudes Survey 2009 recently disclosed that 507 percent ofthe British public did not regard themselves as belonging to any particular reli-gion despite the fact that 382 percent were themselves brought up in theChurch of EnglandAnglican tradition and that apart from special occasionssuch as weddings funerals and baptisms 475 percent of the populationldquonever or practically neverrdquo attended services or meetings connected withtheir religion See httpwwwnatcenacukmedia606622bsa20200920annotated20questionnairespdf 70ndash7192 Moore ldquoThe KirpanmdashSikh Dagger Banned by Some Schoolsrdquo93 Poonam Taneja ldquoSikh Judge Sir Mota Singh Criticises Dagger Bansrdquo BBCNews February 8 2010 httpnewsbbccouk1hi8500712stm Sir MotaSingh QC is however recorded as having ldquolater told BBC Radio 4rsquos Todayprogram lsquoBut on the other hand I am also conscious of the health and safetyposition I accept that because I think as one realises the increase in crimesof violence involving the use of knives and other offensive weapons I can seethatrsquordquo


27



ownloaded from

voting in favor of the ban on the Sikh symbol94 The ban came after anincident in which four Sikhs invited to take part in a parliamentaryhearing were barred from entering the legislature by the buildingrsquoshead of security95 On the other hand Hardeep Singh Kohli theBritish writer and radio and television presenter who describeshimself as a ldquosecular Sikhrdquo and who gingerly remarked ldquoI tread care-fully into the quagmire that is religious beliefrdquo disagreed with ldquoBrit-ainrsquos highest-profile Sikh member of the judiciaryrdquo on the groundsthat he is ldquosimply not comfortable with knives being allowed intoschool What if the kirpan were forcibly removed and usedrdquo As heexplained ldquo[t]he practicality of baptised Sikhs carrying kirpans isnot a new issue That is why small symbolic kirpans are attached tocombs that Sikhs keep in their hair Similarly small kirpan-shapedpendants are worn around the neck again fulfilling the criterion ofthe faith that the dagger be ever-presentrdquo96 Kohlirsquos observationsprovide a salutary reminder of human ingenuity in the art of religiouscomprise even when matters of principle are at stake People canmake their religion meaningful to them in more ways than one

That still leaves outstanding the question of what is to be doneabout adherents of a religion who do not feel able to modify thepractice of an important article of their faith Should not the issueof religious practice be addressed from the viewpoint of the individ-ual in question This is what Council Directive 200043EC and theprinciples of European antidiscrimination law now require97 Thestate cannot just purport to be neutral98

94 Gurmukh Singh ldquoCanadian Sikhs Angry as Quebec Assembly Bans KirpanrdquoThaindian News February 10 2011 httpwwwthaindiancomnewsportalworld-newscanadian-sikhs-angry-as-quebec-assembly-bans-kirpan_100500741html See also ldquoQuebec Legislature Bans Kirpan in Unanimous Voterdquo iPoliticsFebruary 9 2011 httpipoliticsca20110209quebec-legislature-bans-kirpan-in-unanimous-vote It is said however that ldquoThe kirpan motion is thelatest twist in Quebecrsquos so-called identity debatemdashwhere the opposition haspushed the government to take a stronger stand in defense of the provincersquossecular francophone characterrdquo See ldquoKirpan banned at Que national assem-blyrdquo CBC News February 9 2011 httpwwwcbccacanadamontrealstory20110209pq-kirpan-measurehtml95 See ldquoKirpan Now Banned at the Quebec National Assemblyrdquo The CanadaPost (London) March 2011 1196 Hardeep Singh Kohli ldquoMightier than the Kirpanrdquo The Guardian February 82010 httpwwwguardiancoukcommentisfreebelief2010feb09dagger-dilemma-sikhism-kirpan-schools97 See httpeur-lexeuropaeuLexUriServLexUriServdouri=CELEX52008PC0426ENNOT98 Council Directive 200043EC of 29 June 2000 implementing the principleof equal treatment between persons irrespective of racial or ethnic origin Avail-able online at httpeur-lexeuropaeuLexUriServLexUriServdouri=CELEX32000L0043enHTML ldquoThe aim of this proposal is to implement the principleof equal treatment between persons irrespective of religion or belief disability


28



ownloaded from

When the issue arose again in 2010 another education authorityin the United Kingdom dealt with it rather differently There wasstill no rights-based approach but the matter was dealt with inthe context of faith culture and society In that year new guidanceissued to head teachers and governing bodies in Bedford99 statedthat baptized Sikhs can wear a kirpan with a blade of up to sixinches Given that only a year before the fourteen-year-old Sikhboy in North London had been excluded from Compton School inBarnet after governors ruled his 5-inch (127 centimeter) kirpanwas a health and safety risk this was quite a radical developmentOne might ask why a kirpan is deemed to be a health and safetyrisk in one part of the country one year but not so in another partin another year If the issue is to be left to be resolved in accordancewith local domestic context rather than broader principles of theinternational law on religion one might expect different educa-tional bodies to decide the issue differently

In the case of Bedford the members of Bedfordrsquos Standing Advi-sory Council on Religious Education (SACRE) had agreed that theguidance be developed specifically by members of the Sikh com-munity itself Clearly the issue in Bedford had been looked atfrom the viewpoint of the individual practitioners of the faithrather than the standpoint of the state which had a right tojustify a ban on grounds of ldquopublic safetyrdquo State authorities inBedford had considered it to be their duty to find ways in whichthe right to religious expression could be maintained for a religiousminority even in circumstances where that right involved a practicethat some in the majority population may find at best unusual andat worst disconcerting However as Mr Bhavra of Bedfordrsquos SACREexplained there were around two thousand Sikh children in Bedfordbut only a few of these would be baptized and in any event ldquopeopleneed to be educated as to why Sikhs have the five Ksrdquo100

age or sexual orientation outside the labour market It sets out a framework forthe prohibition of discrimination on these grounds and establishes a uniformminimum level of protection within the European Union for people who havesuffered such discriminationrdquo It also explained that ldquoIt is based on the princi-ples of non-discrimination participation and inclusion in society equal oppor-tunities and accessibilityrdquo99 Bedfordshire Schools Sikh Pupils Wearing of the Kirpan httpwwwschoolsbedfordshiregovukCirculardocs02h-02-45adoc ldquoThe purpose ofthis document is to address concerns arising from the Sikh tradition of carryingthe Kirpan a ceremonial sword or daggerrdquo100 ldquoSikh Students in Bedford UK Allowed to Wear Kirpan to Schoolrdquohttpswnscomsikh-students-allowed-to-wear-ceremonial-dagger-to-school-150951html


29



ownloaded from

Yet lest it be thought otherwise the Bedford advice did not ignoresafety concerns because under its agreed guidelines the ldquoKirpanshould be sheathed and out of sight and should be removed forPE lessonsrdquo101 ldquoRobin Rice Head of RE at Biddenham UpperSchool Bedford and a member of SACRE said that the Kirpanwas not designed as a weaponrdquo and that ldquo[i]f you work in a schoolthat isnrsquot very multi-faith and suddenly a Sikh student turns upwith a Kirpan you might think lsquowhat do I dorsquordquo adding that ldquo[t]heKirpan should be hidden and it should never be brought out in anattackrdquo102 It is clear that the Bedford guidelines are a measuredand sensitive response to the issue of religious freedom of baptizedSikh students in British schools They are contextually attunedThey are sensitive to the religious meanings of a cultural practiceAt the same time they quite properly do not allow every Sikhstudent to bring a Kirpan into school That would be a charter forthe frivolous and uncommitted and would raise justifiable concernsof student safety in schools Indeed it does not even allow everybaptized Sikh student to do so It only grants this freedom to a bap-tized Sikh who can demonstrate that he or she is observant of allfive requirements of the baptized in the Sikh faith103 In this way

101 Ibid102 Ibid103 A large body of academic literature has grown up over the last thirty yearson the Sikhs This has been spearheaded by the late Hew McLeod who sadlypassed away in July 2009 W H McLeod lived among the Sikhs for almost adecade and is a foremost historian of Sikhism in the world today His latestbook is Sikhism (London Penguin Books 1997) Almost all of his books and pub-lished articles concern Sikh history religion and sociology The books includ-ing Guru Nanak and the Sikh Religion (1968) The Evolution of the SikhCommunity (1976) Early Sikh Tradition (1980) and Who is a Sikh (1989)have all been published by the Clarendon Press in Oxford His high esteemcan be gauged by the fact that in 2004 Oxford University published a seriesof essays by leading Sikh scholars ldquoIn honour of Professor W H McLeodrdquounder the auspices of the Sikh Studies Program of the University of Michiganwhich described McLeod as having ldquomade a seminal contribution in the fieldof Sikh Studiesrdquo so much so that ldquo[a]s a leading Western scholar of Sikh religionand history W H (Hew) McLeod has single-handedly introduced nourishedand advanced the field of Sikh studies over the last four decades On anumber of occasions he has represented the Sikhs and Sikhism to both aca-demic and popular audiences in the English-speaking world He appeared asan expert witness in the court-hearing of the lsquoRoyal Canadian Mounted Police(RCNP) Turban Casersquo in Calgary Alberta in 1994 In 1994 also he appeared forCanadian Human Rights Commission in a hearing involving Sikh Kirpans (lsquomini-ature swordsrsquo) carried on aircraftrdquo See ldquoIntroductionrdquo in Sikhism and Historyed Pashaura Singh amp N Gerald Barrier (New Delhi Oxford University Press2004) 5 Others who have followed in his wake are Eleanor Nesbitt OwenCole Roger Ballard Pashaura Singh Harjot Oberoi Nikki-Gurinder KaurSingh J S Grewal and Gurinder Singh Mann among others all of whom havemade quite startling contributions to the growing field of Sikh studies


30



ownloaded from

the Bedford guidelines set out to preserve the seriousness of reli-gious faith while balancing this against the general public interestconcerns of student safety Clearly therefore a sensible well-balanced and pragmatic approach is emerging which seeks to safe-guard both the individual interest in religious freedom and thewider state interest in public safety Thus the advice from SACREis expressly that ldquothe Kirpan can only be worn with the four othersigns of the Sikh faith and schools will expect to remove it fromany student not wearing all five symbols or who unsheathes itrdquo104

On this basis Judge Mota Singh QC can wear his kirpan in publicplaces as a practicing baptized Sikh Hardeep Singh Kohli cannotas a secular Sikh

Similar issues have arisen in other parts of the English-speakingCommonwealth These also help demonstrate that a rights-basedapproach is not necessarily conducive to the promotion of religiouspractices What is more important is the attitude of the state itselfWhen in 2007 Victoriarsquos State Parliamentary Committee in Aus-tralia allowed Sikh students to carry the kirpan it was reportedthat ldquothis move has outraged principals and teachersrdquo who ldquohadconcerns about students carrying the kirpanmdashwhich is hiddenunder the school uniformrdquo though the committee ldquorecommendedthat the decision remain with individual schoolsrdquo105 This resultedfrom an inquiry into dress codes and uniforms in schools in Victoriaby the Education and Training Parliamentary Committee which rec-ommended ldquothat the Department of Education and Early Childhooddevelopment require all Victorian schools to accommodate clothingand other items with religious significance where appropriatewithin a framework developed by the Departmentrdquo106 What is inter-esting is that the Sikh Council of Australia took the position thatkirpans should not be allowed in schools at all (thus once againdemonstrating the disagreement on this issue among Sikhs them-selves) Its general secretary Bawa Singh Jagdev while recognizingthat ldquoapproximately 8 percent of the total Sikh population in Aus-tralia are initiated or baptized Sikhsrdquo argued that ldquo[c]hildren canleave the Kirpan at home and go to school come back and wear

104 ldquoSikh Students in Bedford UK Allowed to Wear Kirpan to Schoolrdquohttpwwwsikhiwallpaperscomnews1572bedford-schools-allow-kirpans105 Satnam Singh ldquoAustraliarsquos Victoria State Allowed Sikh Students toCarry lsquoKirpansrsquo in Schoolsrdquo httpwwwnriinternetcomNRIsikhsKIRPANKirpan_wearing_in_SchoolsAsiaAustraliaVictoria_ALLOWED_KIRPANhtmAlthough the committee also allowed for Muslim students to wear hijabs or veilsin the statersquos classrooms it curiously also called for schools to include hats andaddress sun protection in their dress codes106 Satnam Singh ldquoKirpan Wearing in Schoolsrdquo December 26 2007 httpwwwnriinternetcomNRIsikhsKIRPANKirpan_wearing_in_SchoolsAsiaAustralia2_Sikh_Council_of_Australiahtm


31



ownloaded from

itrdquo107 Yet it is significant that when Victoriarsquos State ParliamentaryCommittee ldquoreceived a substantial body of evidence during its year-long inquiry addressing the needs of culturally and linguisticallydiverse communities particularly with respect to clothing andother items with religious significance for the wearer the twoitems most frequently mentioned throughout the inquiry were thehijab (Islamic headscarf ) and the kirpanrdquo108 This demonstrateshow democratically constituted government bodies are often morein touch with the realities on the ground than community groups

On the other hand the Sikh Interfaith Council of Victoria in itssubmission to the committee was of the view that ldquo[s]tudentsshould be able to wear their significant religious symbols andarticles of faith Christian crosses hijab yaramulka (Jewishcaps) kirpansrdquo109 Although Geoff Howard chairperson of thestate parliamentary committee is reported to have said that ldquo[w]eaccepted that the kirpan could be carried by a small group of bap-tized Sikhsrdquo and ldquo[w]e are certainly not in favour of banningkirpans as suchrdquo Victoriarsquos Department of Education was not infavor of allowing kirpans in schools A spokesperson for the depart-ment adopted the all-too-familiar position that ldquo[t]he overarchingguideline is that weapons are not permitted in schools but individ-ual uniform policies are developed by schools in consultation withparentsrdquo adding that ldquo[t]he department is not aware of any govern-ment schools in the state that allows the kirpanrdquo110 An altogethermore liberal approach emerged however when in May 2011a poll of over 7500 students in Queensland conducted onthe question of ldquoShould knives be allowed in school if they are alegitimate expression of faithrdquo found 57 percent in favor and43 percent against Indeed Queensland Anti-DiscriminationCommissioner Kevin Cocks argued in a submission tabled toparliament at the time that the government had provided no evi-dence that any school attacks had involved a kirpan or other reli-gious knife111

In March 2010 in New Zealand the Human Rights Commissionwas also asked to clarify whether a Sikh student should be

107 See ldquoKirpans should not be allowed at schools at allrdquo December 26 2007httpwwwnriinternetcomNRIsikhsKIRPANKirpan_wearing_in_SchoolsAsiaAustraliaVictoria_ALLOWED_KIRPANhtm According to the 2006 censusconducted by the Australian Bureau of Statistics there were 26429 Sikhs inAustralia with the largest number of 11637 residing in New South Wales fol-lowed by 9071 in Victoria 2636 in Queensland 1393 in Western Australiaand 1226 in South Australia108 Ibid109 Ibid110 Ibid111 Daniel Hurst ldquoSikhs Play Down School Knife Fearsrdquo


32



ownloaded from

allowed to wear a kirpan112 Two schools in that country had con-tacted the commission for advice on how to handle requests towear the kirpan In one case a mother of boys aged thirteen four-teen and fifteen who wear kirpans to school in South Aucklandsaid the 12-centimeter blades were under a shirt and ldquonot hurtinganyonerdquo She visited the schools to explain the significance of theknives convincing staff they would not be used to hurt others Asin the United Kingdom and Australia Rawiri Brell from the Ministryof Education said what students wore at school was a matter for theindividual boards Education law expert Patrick Walsh said anyschool that received a request to wear a kirpan should investigateif it related to a core religious or cultural value if there were anyhealth and safety concerns and whether the request was outra-geous or rebellious113 Clearly therefore a sensible well-balancedand pragmatic approach is emerging which seeks to safeguard boththe individual interest in religious freedom and the wider stateinterest in public safety

Conclusion

It is imperative that the kirpan is not seen as intrinsically danger-ous This is because there is no evidence to support such a proposi-tion This will help resolve many of the school cases concerning thekirpan In so far as it is deemed to be dangerous this is arguably alegacy of times past when the thinking of Aristotle provided a ready-made framework allowing people to understand objects that wereunfamiliar to them It is however a view that is much discreditedtoday even in the West Yet the legacy has left an uncertainty inthis area that is not helpful The practice of wearing the Sikhkirpan in the democratic world is still in a state of flux Somestates allow it without inhibition Others are more wary Themajor bone of contention that emerges is whether there can be acompromise Can State bodies insist on a modification in thegeneral interest After all religious traditions are apt to changeover time and space The kirpan however is a fundamental tenetof the Sikh faith No practicing Sikh is likely to give that up lightly

Is the requirement of a fettered kirpan a violation of a Sikhrsquos reli-gious freedom under human rights law If so what modifications inparticular breach the right to religious freedom If there are safetyconcerns would a period of inspection nevertheless be considered

112 Rachel Grunwell ldquoSikh Daggers Testing Schoolsrdquo New Zealand HeraldMarch 21 2010 httpwwwnzheraldconznznewsarticlecfmc_id=1ampobjectid=10633303113 Ibid


33



ownloaded from

so invasive as to violate freedom of religion Does a state escaperesponsibility for religious freedom violations if it adopts a decen-tralized approach to resolving religious disputes that are morealive to local concerns On the face of it the answer to all thesequestions is that the statersquos right to act in the general interest forreasons of public safety and security trumps the individual rightto practice religion in accordance with the dictates of onersquos con-science This is because it is well established in democratic societiesthat where several religions coexist within one and the same popu-lation it may be necessary to place restrictions on freedom to man-ifest onersquos religion or belief in order to reconcile the interests of thevarious groups and ensure that everyonersquos beliefs are respected114

Freedom of religion it is worth recounting is not an absoluteright115 and it is not to be forgotten that as far as the EuropeanConvention of Human Rights is concerned the statersquos positive obli-gation is not just to guarantee individual rights and freedoms but tosecure to everyone within its jurisdiction the rights and freedomsdefined in the convention116 What this would appear to imply isthat because freedom of religion principles do not protect everyact motivated or inspired by a religion or belief117 the right of apracticing Sikh to wear the unfettered and unmodified kirpan may

114 See Kokkinakis sect 33115 As is clear from the qualifying provision in sub-paragraph 2 of article 9116 See article 1 of the European Court of Human Rights which reads ldquoTheHigh Contracting Parties shall secure to everyone within their jurisdiction therights and freedoms defined in Section I of this Conventionrdquo117 See Kalac v Turkey - 2070492 [1997] ECHR 37 (July 1 1997) httpwwwbailiiorgeucasesECHR199737html which concerned a judge advocate inthe Turkish air force who was compulsorily retired for breach of disciplineand infringing the principle of secularism He was charged in particular withmembership of a fundamentalist (Muslim) sect and participation in unlawfulfundamentalist activities The commission upheld his complaint that therehad been a violation of article 9 The European Court of Human Rightshowever ruled against his complaint on the ground ldquothat his compulsory retire-ment did not amount to an interference with the right guaranteed by Article 9since it was not prompted by the way the applicant manifested his religionrdquo (sect31) Similarly in Arrowsmith v United Kingdom - 705075 [1978] ECHR 7(October 12 1978) httpwwwbailiiorgeucasesECHR19787htmlbecause Miss Arrowsmithrsquos opposition to the presence of the British Army inNorthern Ireland did not objectively say anything about and did not manifestpacifism the commission regarded that as fatal to her case even though itaccepted that pacifism was the motivation for her objective actions therebyholding that religious motivation was not enough Also see Tepeli and Others[v Turkey (dec) no 3187696 September 11 2001]) which confirmed the prin-ciple that the Supreme Military Councilrsquos order was based not on the applicantsrsquoreligious beliefs and opinions nor on the manner in which they performed theirreligious duties but on their conduct and activities in breach of military disci-pline and the principle of secularism


34



ownloaded from

be curtailed by the state in the interests of the rights and freedomsof others

Such a conclusion would be mistaken It hardly needs remindingthat the character and nature of contemporary liberal democracieshave a high degree of religious and cultural diversity Our soci-eties are truly multicultural That is something of which we inthe democratic world may be justly proud Elsewhere whereverone looks the rest of the world is in upheaval with ethno-religiousgroups juxtaposed against each other as even the ldquoArab Springrdquorevolutions now show There is a barely concealed hostilityabout Of course it is true that lest we fall into the same pitfallsourselves as those unenviable illiberal societies we must act toremove disagreement and distrust between different communalgroups in our midst But the question we have to ask ourselvesis At what cost

It is not emphasized often enough that the role of democraticstate authority is not to remove the cause of tension by eliminat-ing the kind of pluralism that arises if for example a Sikh is seenwearing a kirpan in a public place but it is rather to ensure thatthe various competing groups tolerate each other118 That is atall order for the democratic state But the State is only neutralwith respect to the organization of its religions It is not neutralon promoting tolerance It is one thing to say that the statekeeps an equal distance between itself and each one of the faithcommunities within it That is the kind of neutrality that stopsthe state from favoring one religion over another It is quiteanother thing to say that the state should remain neutral withrespect to a positive obligation to promote the religious freedomof all members of its community For the state to act in a waythat is conducive to the attainment of public order religiousharmony and tolerance which is the chief attribute of democraticsociety it must not stand by the sidelines It is not for the state tojudge But the state is facilitator of democratic norms and valuesReligious freedom is one such value Indeed it is now well recog-nized that the statersquos duty of neutrality and impartiality is incom-patible with any power on the statersquos part to assess the legitimacyof religious beliefs or the ways in which those beliefs are

118 Serif in which where the court explained ldquoIt is true that the Governmentargued that in the particular circumstances of the case the authorities had tointervene in order to avoid the creation of tension among the Muslims inRodopi and between the Muslims and the Christians of the area as well asGreece and Turkey Although the Court recognizes that it is possible thattension is created in situations where a religious or any other communitybecomes divided it considers that this is one of the unavoidable consequencesof pluralismrdquo (sect 53)


35



ownloaded from

expressed119 What state authority must do however is ensuremutual tolerance between opposing groups120 That requires thestate to take positive steps to develop a better and more informedunderstanding of the kirpan as worn by devout Sikhs In theUnited Kingdom this process is considerably advanced and hasbeen underway for many decades Sikh kirpans are courteouslychecked at security points outside courtrooms and other officialbuildings by well-trained public servants taking due care andconcern not to give offense121 Negative comments about thekirpan in Britain are rare But more can still be done

There is another important principle here that must be high-lighted and this also demonstrates that the state cannot remaincompletely neutral in matters of religion Although individual inter-ests must on occasion be subordinated to those of society ingeneral it is well known that democracy does not simply meanthat the views of a majority must always prevail because thatwould imply taking advantage of onersquos dominant position Thereis a balance to be struck It must be a proportionate balance122

119 See Manoussakis and Others in which the court explained ldquoThe right tofreedom of religion as guaranteed under the Convention excludes any discretionon the part of the State to determine whether religious beliefs or the means usedto express such beliefs are legitimaterdquo (sect 47) Other cases that endorse the sameprinciple include Hassan and Tchaouch sect 78 and Refah Partisi and Others sect 91120 This principle comes across quite clearly in the judgments in United Com-munist Party of Turkey and Others in which the court explained ldquoThe Courtconsiders one of the principal characteristics of democracy to be the possibilityit offers of resolving a countryrsquos problems through dialogue without recourseto violence even when they are irksome Democracy thrives on freedom ofexpression From that point of view there can be no justification for hinderinga political group solely because it seeks to debate in public the situation of partof the Statersquos population and to take part in the nationrsquos political life in order tofind according to democratic rules solutions capable of satisfying everyoneconcernedrdquo (sect 57)121 See for example the guidance given in the Judicial Studies BoardHandbook Ethnic Minority Issues Available online at httpdiscoverynationalarchivesgovukSearchUIdetailsC11244093uri=C11244093-judicial-studies-board-handbook3B-ethnic-detailsampdescriptiontype=Full Alsosee httpwwwjudiciarygovukpublications-and-reportsreportsdiversityethnic-minority-liaison-judges-annual-report-2005-2006122 Where human rights are concerned it is well established that ldquodetailed andanxious considerationrdquo must be given to the rights of the individual See forexample SS (India) v Secretary of State for the Home Department (Rev 1)[2010] EWCA Civ 388 (April 15 2010) at para 40 and para 50 httpwwwbailiiorgewcasesEWCACiv2010388html AF (Jamaica) v Secretary ofState for the Home Department [2009] EWCA Civ 240 (March 26 2009) atparas 40ndash42 httpwwwbailiiorgewcasesEWCACiv2009240html AB(Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ1302 (December 6 2007) at para 1 and para 18 httpwwwbailiiorgewcasesEWCACiv20071302html


36



ownloaded from

But it is a balance that ensures the fair and proper treatment ofpeople from a minority group such as the Sikh religion who wantto practice their religion in a peaceful manner Only through thisbalance can the state avoid any abuse of its dominant position123

Indeed only then can one genuinely move toward the pluralism tol-erance and broadmindedness that are the hallmarks of a demo-cratic society and comprise the foundational and aspirationalvalues of European societies today Where local schools withyoung children are involved or where there are accentuated con-cerns about safety and security it is not necessarily correct to saythat the compromise (in the form for example of a fettered ormodified kirpan) must come from the individual concerned Thisis because our cherished qualities of pluralism and democracymust be based on dialogue and although that dialogue must alsoentail a spirit of compromise that will necessarily entail variousconcessions being made it is by no means the case that such con-cessions must be essentially on the part of individual as opposedto the majority group A balancing exercise must be a proportionateone one that is proportionate not just to the interests of the statebut also to the interests of the individual Any compromise or con-cession on the part of the individual can ultimately only be justifiedif it is in order to maintain and promote the ideals and values of ademocratic society124 Where these ideals and values are amongthose guaranteed by the convention or its protocols it must beaccepted that the need to protect the rights and freedoms of all

123 See Young James and Webster v the United Kingdom nos 760176780677 ECHR 4 1981 (August 13 1981) httpwwwbailiiorgeucasesECHR19814html in which the court explained that ldquopluralism tolerance and broad-mindedness are hallmarks of a lsquodemocratic societyrsquo Accordingly mere fact thatapplicantsrsquo standpoint was adopted by very few of their colleagues is again notconclusive of the issue now before the Courtrdquo (sect 63) Further in Chassagnou andOthers v France [GC] nos 2508894 2833195 and 2844395 ECHR 22 1999(April 29 1999) httpwwwbailiiorgeucasesECHR199922html the courtalso explained ldquoAlthough individual interests must on occasion be subordi-nated to those of a group democracy does not simply mean that the views ofa majority must always prevail a balance must be achieved which ensures thefair and proper treatment of minorities and avoids any abuse of a dominantpositionrdquo (sect 112)124 It was made clear in The United Communist Party of Turkey and Others thatldquo[d]emocracy is without doubt a fundamental feature of the European publicorderrdquo (sect 45) In Refah Partisi and Others the court was emphatic in statingldquoIn view of the very clear link between the Convention and democracy no onemust be authorized to rely on the Conventionrsquos provisions in order to weakenor destroy the ideals and values of a democratic society Pluralism and democ-racy are based on a compromise that requires various concessions by individu-als or groups of individuals who must sometimes agree to limit some of thefreedoms they enjoy in order to guarantee greater stability of the country as awholerdquo (sect 99)


37



ownloaded from

the statersquos people can often lead the state to restrict the rights ofone individual or group This is why addressing the issue in termsof rights is not always the most desirable thing to do What mustnever be forgotten is that this quest involves a process thatentails a constant search for a balance between different interestsbecause it is that which constitutes the foundation of a democraticsociety125

For the Sikhs and their Kirpanmdashthat quest is not yet over

125 In Chassagnou and Others the court said ldquoIt is a different matter whererestrictions are imposed on a right or freedom guaranteed by the Conventionin order to protect lsquorights and freedomsrsquo not as such enunciated therein Insuch a case only indisputable imperatives can justify interference with enjoy-ment of a Convention rightrdquo (sect 113)


38



ownloaded from

States3 Great Britain Australia and New Zealand This is notunsurprising The kirpan is not a humble object It has beendescribed as ldquoa small curved ornamental steel daggerrdquo4 or ldquoaswordrdquo5 that is ldquocommonly 75 centimetres longrdquo and ldquois carried ina sheath and strapped to the body usually under clothingrdquo6 Theissue is of importance as one of individual religious expression Butit is also important because it calls into question the commitmentto multiculturalism pluralism tolerance and broad-mindednessthat is the hallmark of the Western liberal democratic state7

The wearing of the kirpan raises these issues far more acutely thanthe more familiar examples of religiously ordained dress codes8

3 A case that needs to be better known is the prendash911 US case of Gurdev KaurCheema v Harold Thompson 67 F 3d 883 (9th Cir 1995) in which circuit JudgeHall held that ldquothe children had to prove that their insistence on wearing kirpanswas animated by a sincere religious belief and that the school districtrsquos refusalto accommodate that belief put a substantial burden on their exercise of reli-gion The children unquestionably carried their burdenrdquo Available online athttpwwwsikhcoalitionorgadvisories7-legal20-united-states-judicial-opinions-regarding-the-sikh-religious-identity-summary-of-landmark-decisionsJune 24 2011 Also see httpfederal-circuitsvlexcomvidgurdev-jaspreet-thiara-alvarnaz-ayora-38431292 This article will not however further considerthe case-law from the United States as the discussion here is the countries ofthe British Commonwealth4 See httpwwwnriinternetcomNRIsikhsKIRPANKirpan_wearing_in_SchoolsAsiaAustraliaVictoria_ALLOWED_KIRPANhtm It is said that ldquo[t]hepractice of carrying the sheathed scimitar can be traced back to the lifetimeof the sixteenth-century Sikh prophet Guru Hargobind who regularly carriedtwo swords as a symbol of a Sikhrsquos spiritual as well as temporal obligationsrdquoSee Rebecca Lowe ldquoSikh Dagger Banned by Finchley Schoolrdquo The TimesOctober 13 2009 httpwwwtimes-seriescouknewstopstories4679126Sikh_dagger_banned_by_Finchley_school5 Michael Sheridan ldquoPlymouth-Canton School District in Michigan AllowsStudents to Wear Kirpan Daggers to Classrdquo NY Daily News February 1 2011httpwwwnydailynewscomnewsnational201102012011-02-01_michigan_school_district_allows_students_to_wear_daggers_to_classhtmlixzz1DSGsnj5g6 ldquoSikh Knives lsquoShould Be Allowed in Schoolsrsquordquo The Sydney Morning HeraldFebruary 10 2010 httpwwwsmhcomauworldsikh-knives-should-be-allowed-in-schools-20100209-npsyhtml 7 In Sahin v Turkey - 4477498 [2005] ECHR 819 (10 November 2005) httpwwwbailiiorgeucasesECHR2005819html the court explained thatldquo[p]luralism tolerance and broadmindedness are hallmarks of a lsquodemocraticsocietyrsquordquo (sect 108) See also Kokkinakis v Greece May 25 1993 sect 3 Series Ano 260-A and Buscarini and Others v San Marino [GC] no 2464594 sect 34ECHR 1999-I8 In 2008 fourteen-year-old Sarika Singh won a High Court case against herschool after it excluded her for breaking its ldquono jewelryrdquo rule for wearing akara (a Sikh bangle) see Watkins-Singh R (on the application of) v AberdareGirlsrsquo High School amp Anor [2008] EWHC 1865 (Admin) (July 29 2008) httpwwwbailiiorgewcasesEWHCAdmin20081865html But in another casewhere there was not only an alternative school available but also a rule


2



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4



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5



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9



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10



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11



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12



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13



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14



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15



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16



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17



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18



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19



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20



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21



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22



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23



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24



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25



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26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





3



ownloaded from







4



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5



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6



ownloaded from







7



ownloaded from




8



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9



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10



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11



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12



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13



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14



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15



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16



ownloaded from







17



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18



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19



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20



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21



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22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from







4



ownloaded from






5



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6



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7



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8



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9



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10



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11



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12



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13



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14



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15



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16



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17



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18



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19



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20



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21



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22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from






5



ownloaded from





6



ownloaded from







7



ownloaded from




8



ownloaded from





9



ownloaded from






10



ownloaded from







11



ownloaded from






12



ownloaded from





13



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14



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15



ownloaded from






16



ownloaded from







17



ownloaded from





18



ownloaded from





19



ownloaded from





20



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21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





6



ownloaded from







7



ownloaded from




8



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9



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10



ownloaded from







11



ownloaded from






12



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13



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14



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15



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16



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17



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18



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19



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20



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21



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22



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23



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24



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25



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26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from







7



ownloaded from




8



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9



ownloaded from






10



ownloaded from







11



ownloaded from






12



ownloaded from





13



ownloaded from






14



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15



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16



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17



ownloaded from





18



ownloaded from





19



ownloaded from





20



ownloaded from






21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from




8



ownloaded from





9



ownloaded from






10



ownloaded from







11



ownloaded from






12



ownloaded from





13



ownloaded from






14



ownloaded from





15



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16



ownloaded from







17



ownloaded from





18



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19



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20



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21



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22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





9



ownloaded from






10



ownloaded from







11



ownloaded from






12



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13



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14



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15



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16



ownloaded from







17



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18



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19



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20



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21



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22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from






10



ownloaded from







11



ownloaded from






12



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13



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14



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15



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16



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17



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18



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20



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21



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22



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23



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24



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25



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26



ownloaded from





27



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28



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29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from







11



ownloaded from






12



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13



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14



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15



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16



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17



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20



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21



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22



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23



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24



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25



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26



ownloaded from





27



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28



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29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from






12



ownloaded from





13



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14



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15



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16



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17



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21



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22



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24



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25



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26



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27



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28



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29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





13



ownloaded from






14



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15



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16



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17



ownloaded from





18



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21



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23



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24



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25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from






14



ownloaded from





15



ownloaded from






16



ownloaded from







17



ownloaded from





18



ownloaded from





19



ownloaded from





20



ownloaded from






21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





15



ownloaded from






16



ownloaded from







17



ownloaded from





18



ownloaded from





19



ownloaded from





20



ownloaded from






21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from






16



ownloaded from







17



ownloaded from





18



ownloaded from





19



ownloaded from





20



ownloaded from






21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from







17



ownloaded from





18



ownloaded from





19



ownloaded from





20



ownloaded from






21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





18



ownloaded from





19



ownloaded from





20



ownloaded from






21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





19



ownloaded from





20



ownloaded from






21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





20



ownloaded from






21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from






21



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from






22



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from






23



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from






24



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





25



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from







26



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





27



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





28



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



ownloaded from





34



ownloaded from






35



ownloaded from





36



ownloaded from





37



ownloaded from





38



ownloaded from





29



ownloaded from




30



ownloaded from






31



ownloaded from






32



ownloaded from


Conclusion





33



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