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The Judgment:
Gurleen Kaur v. The State of Punjab

by JASBIR SINGH SETHI

 

The 154-page Judgment given on May 30, 2009 by the High Court of Punjab and Haryana in Case # CWP 14859 of 2008, titled Gurleen Kaur, et al vs. State of Punjab, et al is historic for Sikhs all over the world.

The court held, inter alia - within the context of the fact situation put before it and based on the representations made to it by a plethora of interests - that " ... retaining hair unshorn is a fundamental tenet of the Sikh Religion. ..."

First and foremost, we must remember that the Judgment, though a most important one which will undoubtedly have an impact on many day-to-day goings on in the temporal world, does not change anything within the realm of Sikhi as it has been enunciated by our Gurus or the way their teachings apply to us.

Let us face it: this issue, though absolutely fundamental, was grossly mismanaged by all concerned, by the time it came to a head at the court hearing. It had become a "hot potato" in almost every Sikh household all over the world.

In fact, the younger generation had come out in open revolt and the Sikh religious authorities, jathedars, scholars and parents had almost admitted defeat.

Gurleen Kaur took the issue to the High Court of Punjab and Haryana, at Chandigarh.

The basic issue was: can a person trimming his/her hair still claim to be an observant Sikh? Gurleen was denied admission into Guru Ram Das Medical College, Amritsar, against a reserved quota for Sikhs. The grounds for the refusal were that she trimmed her eye-brows.

Naturally, numerous parties got involved. To name but a few: The Shirimoni Gurdwara Prabhandhal Committee (SGPC), Amritsar; The Delhi Gurdwara Prabhandak Committee; the Government of the State of Punjab; the International Sehajdhari Association and, covertly, all kinds of sants, deras and ... political parties too.

I urge all readers to envision the importance of this case.

If the judgment had gone the opposite way, then Sikhs all over the world who are fighting legal battles for their right to keep unshorn hair and wear a turban - cases in USA, Canada, U.K. and many other countries around the world, over security regulations, job discrimination, hate crimes, and even kids in schools (France), etc. - all these fights would have been lost causes in fell swoop!

The most disappointing performance was by the SGPC advocate(s). The Honourable judges are reported to have harshly rebuked them because of their lack of preparation.

The court had invited scholars, learned elders and paracharaks. The judges commended the contribution of Mr. Anupam Gupta, Senior Standing Counsel for the Union Territory of Chandigarh, who with his relentless hard work dug through the literature from Macauliffe and Mcleod, historical rehat naamas, the current Rehatnama, the Punjab Gurdwara Act with its Amendments, the Delhi Gurdwara Act, the Sikh Ardaas, as well as the Guru Granth Sahib.

Such a thorough comprehensive review is commendable.

Needless to say, there were all kinds of overt and covert pressures on the parties. The Judges too recognized the tremendous emotional content and energy revolving around the case.

The issues involved were multi-dimensional, and the court did not hesitate to draw on not only the judgments given in various courts all over India, but even internationally, including Kosovo and the Philippines!

This is a monumental document - the 154-page Judgment. Besides being historic for Sikhs, it is a landmark legal document that sets the bar very high for the Indian Judicial System.

It is unfortunate that Sikhs and their media have to date failed to fully explore and review its long-term and far-reaching implications.

I would humbly like to make two suggestions to Sikhs around the world:

A   Every Sikh household in the world, every Sikh Gurdwara/ Library and institution must obtain a copy of of this document and keep a bound copy readily available for its members. Since we have failed miserably in giving proper answers to our younger generation, let them have, at the very least, access to the relevant information and documents.

B   Sikhs urgently need a credible forum where such significant and important, intricate and complicated issues affecting all Sikhs all over can be fully and properly addressed with the help of all the necessary objectivity, independence, research, scholarship, representation and advocacy.

 

To review the complete judgment - and we recommend it - please click here:

www.scribd.com/doc/15971334/KuarvPunjab509

June 25, 2009

Conversation about this article

1: I.J. Singh (New York, U.S.A.), June 25, 2009, 9:06 AM.

In many ways, this case highlights our problems. Can you imagine any religion where its fundamental definitions are debated by a judiciary composed of those who may be non-believers of that faith? Or even if they are believers, they are not experts on the religion, but on secular law? What we need is an organized system of ecclesiastical judiciary of Sikhs, not an All India Gurdwaras Act that is subservient to the Constitution of a particular country. Running to secular courts says that we have no system to resolve internal conflicts, that we lack the sense or the means to resolve such matters and that we need a monkey in the middle.

2: Harinder (Delhi, India), June 25, 2009, 10:31 AM.

Is Sikhi to be defined in man-made courts? We seek divine redressal and not man-made justice which can be subverted at will by crooked politicians, as in '84.

3: Gurpal (U.K.), June 25, 2009, 11:42 AM.

So what happens to those who cut or trim their hair? Does this open a Pandora's Box?

4: H. Singh (Los Angeles, U.S.A.), June 25, 2009, 7:11 PM.

I.J Singh posed a good question. However, do you think India would allow this to happen?

5: Raj (Canada), June 25, 2009, 8:32 PM.

We need to start looking at the future and create a body which represents Sikhs from every continent of the world. As Sardar I.J. Singh said, SGPC elections are subservient to the goverment of that country. The body has to be representative of our religious, cultural, economics and even political needs. Those days have long gone when Sikhs were from a small geographical area of India; today Sikhs are in every field of society and every major country in the world. Neither SGPC nor the Indian govt. can or will address the issues. We need a global approach to fight any little or big fires all over the world.

6: Suzy Kaur (Oxford, England), June 27, 2009, 5:48 AM.

Going by this judgment, the Sikh population of the UK can immediately be wiped down to around 50,000 people. I hope that Sikh activists, scholars and all those who rejoice at their victory, reflect this diminution the next time they claim their rights as minorities in the UK and elsewhere due to their supposed 'strength in numbers' as a minority. Or do they only want those Sikhs for statistical purposes, but for all other purposes, to be forced out of Sikhism? It's certainly something that I don't believe many Sikh activists have pondered on, but in the future, it is something that will become more and more apparent.

7: Amardeep (U.S.A.), June 28, 2009, 7:05 AM.

Sirdar Kapur Singh, in his book 'Sikhism for Modern Man', describes nicely this concept of Sehajdhari and Amritdhari Sikhs. We do need a forum where we can sit down and work out and clarify the fine points of these distinctions.

8: Dharamveer Singh (Mumbai, India), June 29, 2009, 1:30 PM.

After all, how didn't you guys realize that both the parties involved here were pursuing their own selfish interests and no one was interested about Sikhism and its principles. It doesn't come across as a surprise, as none of you have studied at a SGPC funded college. I studied at one of them and can clearly see that Gurleen Kaur ji is on a fight for admission and the beloved SGPC just trying to enforce its age old policies. In Khalsa College, Mumbai, the rule is more stringent on the male. A turban is a strict dress code in the college for Sikh students. But "dumallas" are not allowed whereas the white round turbans of "Naamdharis" are allowed. Sikhs have cut their hair and worn a turban and retained their admissions. You would find one wearing a turban at college and as soon as he is about to leave for home, he will go to the washroom of the nearest restaurant and rip off his turban to reveal his hair styles. How can this be tolerated?? SGPC as a body has not been able to impress Sikhs as a whole. It's just that we are living with something we have and can't dare to change. There have been many incidents I witnessed which gave pain. Sikhism starts with yourself and if Gurleen Kaur would have rather not fought for her ego she might have been studying somewhere rather than spending money on lawyers' fees and just trying to get 30 seconds of fame.

9: Jagi Katial (Houston, Texas, U.S.A.), June 29, 2009, 9:12 PM.

Dear Sethi Uncle: I agree with you on the need for Sikhs to have an independent arbitration system outside that of any state sponsored government. I firmly disagree with the importance you place on the this judgment in your statement here, "If the judgment had gone the opposite way, then Sikhs all over the world who are fighting legal battles for their right to keep unshorn hair and wear a turban - cases in USA, Canada, U.K. and many other countries around the world, over security regulations, job discrimination, hate crimes, and even kids in schools (France), etc. - all these fights would have been lost causes in fell swoop! " In my opinion, that is an overstatement that does not acknowledge the dumbing down of what it means to be a Sikh in the diaspora. It falls on us living in and outside India to quit the over-simplification of Sikh philosophy in order to achieve the impression of equality. The fact is, as stated in the Rehat Maryada, that one does not have to have unshorn hair to be a Sikh. I for one, as a turbaned man, am tired of seeing our battles with U.S. law enforcement, schools, employers, etc. based on the statement "Sikh men must keep hair and turban, while a woman may or may not wear a turban". It's a gross over-simplification and based in laziness. We boast being the 5th largest religion in the world, that number is not based on people with Kesh. It lies on us to fight these battles with integrity. Which means admitting to ourselves and then to those who we like to fight that being Sikh is a personal choice with personal levels of adherence. A Sikh, at whatever level of adherence deserves and demands religious right protection. These battles in the diaspora need to be fought with honesty and accurate representation of our community. Amritdhari Sikhs are required to keep unshorn hair. A great number of Sikhs who are not yet initiated into the Khalsa and keep unshorn hair have made a religious commitment that is to be protected under religious rights, acts and laws. One such example of failure is Gurleen Kaur effectively being 'judged' not to be a Sikh based on the fact that she manicured her eyebrows. Seriously? The fact is that the institution in question failed to say they required only Keshadhari Sikhs. Which is a valid requirement, and one that should have been clearly communicated from the onset. Pressing the issue to a point of having to go to court is just juvenile. Could they not let this student slip in and revise the requirements the next time around? Further, allowing a court system that does not even acknowledge Sikhs as existing outside Hinduism to decide this case is counterproductive. These issues need to be discussed within the community for the community. All the exposure of this case serves to make Sikhs look like ignorant, dogmatic, fundamentalist who cannot see the big picture. After all, Guru Gobind Singh gave a very clear and distinctive dividing line for Sikhs. With Amrit or without. Very simple. If the school was attempting to provide some sort of affirmative action type assistance for young Sikhs, why was the dividing line not based on Amrit? Who are we to decide that having Kesh is the new test of being a Sikh. The effect of such lines of thought is only to minimize the importance of Sikhi itself and increase the importance of the simple act of not cutting one's hair. Which is, again, a misrepresentation of Sikh philosophy. The school and Gurleen Kaur are victims of a more than apparent flaw in our system. These things should have been debated and precedent set by a process that we need direly. The current method is subjective and ripe for failure. Are students next year going to be asked to undo beards to show that they are untrimmed and raise pant-legs to prove they are unshaven? To clarify, I do agree that the Kesh is hugely important in the practice of Sikhi. It is however a choice to keep one's hair as a Sikh, and also a choice to take Amrit. All three types are still Sikhs. This is a case of a young woman effectively being told she is not a Sikh. That is wrong. Laws and rules based on "well, if we allow this to happen ... then this will happen" are fear-based. Let's think beyond that.

10: Gurnish Singh Nayyar (Nagpur, India), July 03, 2009, 11:20 AM.

We need not prove that SGPC or Gurleen Kaur both have flaws ... The SGPC is not doing anything for the community, and Gurleen Kaur is not respecting gurbani and Rehat Maryada by asking the courts to declare her a complete Sikh. I don't know why Gurleen Kaur can't understand the importance of keeping rehat. But still, Sikhs who have failed cannot and should not be excluded in any way. The question is: "Can someone born a Sikh but who does not meet the requirements of the maryada, be given the same status as a gursikh?"

11: I.J. Singh (New York, U.S.A.), July 03, 2009, 3:59 PM.

It seems to me that there is a difference between the two terms: Sikh and Gursikh. A Sikh, in my view, is one who calls himself a Sikh. A Gursikh is one who has the life style of a Sikh - at least as stated in the Rehat Maryada. It is like being a Christian, and there are millions of them, or being a Christian in good grace. For example, the Catholic Church may recognize one a Christian but not being in good grace. So one may be able to attend the Mass and other activities but not be eligible to receive Communion. Sikhs, too, are many; Gursikhs are few indeed.

12: Jasbir Singh Sethi (Houston, Texas, U.S.A.), July 08, 2009, 11:08 AM.

I am grateful to you all for expressing your views openly. That kind of bold dialogue is needed. And a civilized dialogue respecting each other is desperately needed to identify and then come up with "consensus solutions" for the challenges we face. I am taking the liberty of expressing my thoughts on some of the issues that have surfaced in the discussion so far: (1) Jurisdiction of Worldly Courts on Religious Issues: Yes, theoretically there should be no jurisdiction. In fact, if you read the judgment, the Judges also consider this issue, but since there is no other authority available to define a Sikh reliably and authoritatively, the Court, in a way took upon itself to define it. Well, the SGPC (which is also a creation under the Gurdwara Act, which itself is subject to interpretation by the Indian Judicial System) supposedly the central Sikh body, has usurped the right to appoint and fire Jathedars, so that those offices have become absolutely unreliable and with doubtful authority both jurisdictionally as well as morally. Is it not a Catch-22 situation? All over the world, Sikh issues (definitely involving the "definition", hair, turban, kakkars) are in secular courts. Let us not be in denial and face the facts, as they stare us fair and square in our face. For example, Sikhs have not signed and accepted the Indian Constitution, but are we not operating, in India, under all Indian laws (including the Hindu Code Bill and Hindu Marriage Act?) Since now Sikhs have spread all over the world, we have to evolve valid global institutions including a judicial one. Don't look for a quick fix and band-aid approach; it is an all-out comprehensive effort. Think of my suggestion #2 as a first baby-step towards creating awareness and eventually, this evolution and creation of these monumental institutions. (2) By this "definition" of a Sikh, our number will become miniscule. Let me throw in an analogy for your consideration. The population of U.S.A. is say 300 millions. All live in the U.S.A. and claim U.S. as their residence. There are many categories of U.S. residents, Green Card Holders, H-1 Visa holders; on and on, even illegal aliens (they also get benefits of many services including health). Just consider the major category of Green Card holders. This status gives them the rights and privileges to come and go, more or less, freely; travel anywhere, take up almost all kinds of jobs, do business, hold properties, enjoy benefits of one of the best educational system in the world, health services, legal system and whatever that the U.S. offers, but they do not have the right to vote. The right to vote gives you the right to participate in the governance of U.S.A. You have to get citizenship by fulfilling the prescribed conditions and requirements, to earn that sacred right to vote and to get the coveted U.S. passport. Let me hasten to remind that all rights come with responsibilities. (3) Various categories of Sikhs cited - Sikh, Gursikh, Amritdhari, Sehajdhari, Patit: I am amused at this variety. Most of it is of recent origin and has been created for our individual convenience and liking. May I add a few more: Jat Sikh, Mazbhi Sikh, Ramgarhia Sikh, Bhappa Sikh, Nanaksarias, Nirankaris, Beas Wale, Ravdasias, and on and on. A new categorical name is coined, then its unique definition is hammered. Then comes the drive to organize and increase numbers (because we have miserably fallen prey to the numbers game even though Guru ji always stresses quality, not quantity). Then starts the political maneuvering tricks, nefarious alliances to capture power through the control of institutions. I think we need a clean-up process, to weed out these out, so that the pristine beauty of the Sikh religion shines for the benefit of the whole of humanity. Most probably, the solution lies in the completely loving approach, yet attaching some responsibilities (using the same analogy of the Citizenship requirements), to the path of proper representation of our Gurus' Ideal Man and Woman. (4) Injustice To Gurleen Kaur: I bet she has the resources to "buy" admission into one of the prestigious colleges. My feeling is this whole episode was a step in a "master plan" - the complete annihilation of Sikhs - which the pathetic Sikhs (Soft Target) have not realized even now. Gurleen Kaur just happened to become a pawn in this nefarious game.

13: Ardaman Singh Madan (East Northport, New York, U.S.A.), July 10, 2009, 7:42 AM.

Here we go again. We want to eat our cake and have it too. When it suits our needs, we go to the courts which are for all intents and purposes an extension of the Government and if not, we criticize the meddling of Government in our affairs. When Rehat Maryada is to be quoted, it comes from an SGPC document - the same body which is created by a Government of India Act and also happens to be in control of the Akal Takht and the paymasters of the Jathedars; otherwise they are criticized as cronies of the Punjab or Indian Governments. In the U.S., we go to courts to decide even our internal matters of the gurdwaras, leave aside the major matters, such as enforcing our rights vis-a-vis joining the Army or the Police. I am not a legal expert, yet it seems to be a very straight forward matter. Denial of human rights and provision of special privileges to some by an act of Government or any other community organization are two very distinct matters. While denying admission to Gurleen Kaur is wrong, the denial of admission under a special quota is perfectly justified. There should be another test, that is whether a medical instituition in question is a public institution privy to public funds or not. If yes, they should be subject to the laws of the community or government as applicable, otherwise the government and courts have no business to interfere. The third and most important factor to be considered is whether it affects public safety or welfare of people at large.

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Gurleen Kaur v. The State of Punjab"









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