2009 Supreme(P&H) 1046

PUNJAB & HARYANA HIGH COURT
J.S.Khehar, Jasbir Singh and Ajay K.Mittal JJ.
Gurleen Kaur
Versus
State Of Punjab
CIVIL WRIT PETITION No. 14859 of 2008,
Decided On : MAY 30, 2009

IMPORTANT POINT
Sikh--Maintaining hair unshorn is an important tenent under Sikh religion-- Sehijdhari and Patits are not Sikhs, even though defined in the Act.
Sikh--Definition of--Who keep their hair unshorn, takes khande ki pahul, follows teachings of ten Gurus, follows no other belief--And does not do four kurahits i.e., does not dishonour hair, does not eat meat prepared by muslim way, does not have consummation with other woman and does not take liquor and tobacco--Sehijdhari and Patits are not forms of sikh--Such definition have no relevance in sikh religion as clearly understandable from tenets, version of scholars and religious spokes persons--Definition given in Act was politically motivated and was given by Britishers on policy of divide & rule.
Educational Law--Admission to medical college--Petitioners were denied admission to Sikh minority community quota because they were not maintaining their hair unshorn--Trimming of hair in case of male students and plucking of eyebrows in case of female students--Whether justified?--YES--Held, Retaining hair unshorn is a fundamental tenent of the Sikh religion and prescription of the precondition of maintaining "Sikhi swarup" is a permissible precondition for admitting students under the Sikh minority community quota--If a Sikh organization or body, decides not to extend any benefit which is otherwise available to a Sikh, to a person who does not maintain his hair unshorn, its determination would be perfectly legitimate.

Headnote:(A) Educational Law--Admission to medical college--Petitioners were denied admission Sikh minority community quota because they were not maintaining their hair unshorn--Trimming of hair in case of male students and plucking of eyebrows in case of female students--Whether justified?--YES. (Paras 139, 140, 148 & 179)

       Held; Retaining hair unshorn is a fundamental tenent of the Sikh religion and prescription of the precondition of maintaining "Sikhi swarup" is a permissible precondition for admitting students under the Sikh minority community quota--If a Sikh organization or body, decides not to extend any benefit which is otherwise available to a Sikh, to a person who does not maintain his hair unshorn, its determination would be perfectly legitimate.

       (B) Educational Law--Admission to Medical College--Denial of--In sikh minority community quota for not fulfilling precondition of maintaining their hair unshorn whether justified? YES-|Constitution of India, 1950, Article 30 and 26. (Para 24)

       Held; The prospectus clearly defined the essential pre-requisites for admission under the Sikh minority community quota. Since the aforesaid precondition for eligibility was depicted in the prospectus itself, and since all the petitioners applied for admission under the Sikh minority community quota, without raising any contest or protest against the aforesaid precondition, they cannot now be allowed to contest the validity of the same when the entire process of selection is over, after their claim has been rejected on the ground, that they do not fulfil the aforesaid precondition.

       (C) Constitutional Law--Religion--Whether it is in the domain of High Court to examine the tenets of religion? YES.

       Held; The words "of their own choice" classifying the right vested in a religious minority to establish and administer educational institutions, must be visualized in a manner so as to determine how the religious consciousness views itself. In determining the right conferred under Article 30 of the Constitution of India, it is essential to determine the salient features of the religious consciousness, not from the touchstone of a general perception of the faith in question, but on the clearly prescribed, and the consciously and persistently followed traits thereof. Therefore, it would be a matter of defeating the right conferred upon a religious minority institution not to determine the tenets of a religious consciousness. We, therefore, hereby conclude that it is within the jurisdiction of courts to adjudicate upon issues of religion

       (D) Constitutional Law--Religion--Tenets of--Scope of interference by Courts--Limited to determine its dos and donts by relying upon the views expressed spokespersons of said religion. (Para 149)

       Held; In case of a conflict, even on an aspect relating to religion, can enter into the religious thicket to determine its dos and donts (of the religion), by relying upon the views expressed by the spokespersons of the said religion. It is not for a Court to make a choice of something which it considers as forward-looking or non-fundamentalist. It is not for the Court to determine whether the issue being examined would lead to the inference, that the aspect is prudent or progressive or regressive. Religion must be perceived as it is, and not as another would like it to be. The followers of a faith do not allow their beliefs to be questioned. Once a Court arrives at the conclusion that a particular aspect of a religion, is fundamental and integral, as per the followers of the faith, it must be given effect to, irrespective of the views expressed on the said issue, based either on science or logic. It is not for the Court to determine whether it is forward looking or retrograde.

       (E) Sikh Gurdwara--Sikh--Definition of--Whether maintaining hair unshorn is an important tenent under the Sikh religion? YES--|Sikh Gurudwara Act, 1925, Section 21a--Delhi Sikh Gurdwara Act, 1971--Constitution of India, 1950, Article 25.

        (Para 127 and 128)

       Held; In our view, the Gurdwara Acts of 1925 and 1971 are legislative enactments, which have withstood the test of time, wherein "keshadhari" (a Sikh who maintains hair unshorn) has been incorporated as the fundamental precondition for being vested with the right to be included even in the electoral rolls. The "Sikh rehat-maryada" not only requires Sikhs to keep their hair unshorn, even an act of dishonouring hair, is taken as a tabooed practice. An act of dyeing ones hair is treated as an act of dishonouring hair. The fundamental of retaining hair unshorn is not only for adults, but is also for minors, as adults are required to maintain the hair of the children unshorn. The "Sikh ardas" also establishes the same tenet, from the fact that the keeping hair unshorn is mentioned twice in the "Sikh ardas". Scholars of the Sikh religion, be it Sikhs or non-Sikhs of Indian heritage, or foreigners believing in a religion other than Sikhism, each one of them has described the requirement to keep hair unshorn as fundamental to the Sikh religion. It would, therefore, not be incorrect for us to conclude, that maintaining hair unshorn is a part of the religious consciousness of the Sikh faith--A perusal of explanation I under Article 25 of the Constitution of India reveals, that wearing and carrying a "kirpan" by Sikhs is deemed to be included in the profession of the Sikh religion--We arrived at the conclusion that wearing and carrying of "kirpans" though an important and significant aspect of the Sikh religion, is nowhere close to the importance and significance of maintaining hair unshorn. If the Constitution of India itself recognizes wearing and carrying of "kirpans" as a part of the profession of the Sikh religion, we have no hesitation, whatsoever, to conclude that wearing hair unshorn must essentially be accepted as a fundamental requirement in the profession of the Sikh religion. For the present controversy, we hereby, accordingly, hold that retaining hair unshorn is one of the most important and fundamental tenets of the Sikh religion. In fact, it is undoubtedly a part of the religious consciousness of the Sikh faith

       (F) Educational Law--Admission to medical college--Denial of--In Sikh minority community quota for not maintaining fulfilling precondition of their hair unshorn--All petitioners are minors--Whether entitled to any leniency ? NO. (Para 146)

       Held; Undoubtedly, the petitioners have not committed any crime, or any act which can be treated to be in conflict with law. Their only lapse is that they have not maintained "Sikhi swarup". In other words, boys amongst the petitioners have indulged in trimming their hair, and girls amongst the petitioners have been plucking hair from their eyebrows. These aberrations, according to the petitioners, cannot be included in the same bracket as an act in conflict with law. The petitioners are out of families, which have for generations followed the Sikh religion, and as such, are entitled to be treated as Sikhs. We are of the view that the aberrations at the hands of the petitioners cannot be ignored. The acceptance of the plea advanced by the learned counsel for the petitioners, can lead to consequences which could frustrate the cause sought to be pursued. A minority community can lay down standards of acceptance, so as to persuade followers of the said community (religious or linguistic) to adhere to norms treated as fundamental/essential therefor. The instant controversy is of a like nature wherein a religious minority community desires to limit the benefit of reservation, for such of the members of its community only, who adhere to norms treated as fundamental and integral by it. As already concluded above, retaining hair unshorn is an essential component of the Sikh religion. Maintaining hair unshorn is a part of the religious consciousness of the Sikh faith. If the said religious community wishes to enforce the aforesaid norm as a precondition for admission, there is nothing wrong about it.

       (G) Sikh Gurdwara--Sikh--Definition of--Whether maintaining hair unshorn is essential part of Sikh religion? YES.

       Held; In our view, the Guru Granth Sahib is a treatise limited to the expression of the moral and spiritual code of conduct for Sikhs. The Guru Granth Sahib is also a guide/teacher/prayer for Sikhs to lead them to salvation i.e. merger with God. The physical aspects of the Sikh faith, can be rightfully traced only from the "Sikh rehat-maryada" and from other preachings of the "Sikh gurus" connected to the code of conduct in their day to day life. It would be wrong, therefore, to look for an answer to the controversy, whether or not, Sikhs are ordained to maintain their bodily hair unshorn from the Guru Granth Sahib.