Updated: Oct 5, 2019
The petitioner was a prosecution witness in a case, the trial of which is being conducted before the learned Sessions Judge, Ambala. On 18.04.2015, the petitioner went to the Court to give his statement as prosecution witness. He being an Amritdhari Sikh was wearing a Kirpan on his person. Ld. Sessions Judge, Ambala objected to the same and directed him to remove the Kirpan, in case he wanted to appear as a witness. When the petitioner refused to do so, on the plea of his religious freedom, Ld. Sessions Judge did not record his statement and directed him to appear in Court without wearing his Kirpan. Hence, the petitioner filed a writ petition through Navkiran Singh Advocate, who is also the general secretary of ‘Lawyers for Human Rights International‘ seeking quashing of the aforesaid order on the ground that it violates his fundamental rights to profess and practice his religion. In the written statement filed on behalf of the State of Haryana, it has been stated that Kirpan should be considered as a religious symbol relating to the Sikh religion and there should be no restriction on wearing Kirpan by Sikhs while appearing in the Court.
Observations: It is now universally accepted that the wearing of five Kakars. -Kesh (unshorn hair), strapped Kirpan (sword), Kachhehra (prescribed shorts), Kangha (Comb tucked in the tied up hair), Karha (Steel bracelet) is a mandatory requirement for every Amritdhari Sikh. However, reference is being made to a few authoritative works on Sikh religion and history, solely with a view to understand the significance and importance to an Amritdhari Sikh of the five Kakars, of which kirpan is one, as only in such a backdrop would it be possible to understand the anguish and consternation that the impugned order has evoked in the petitioner.
Hon’ble High Court referred to the relevant portions of History of the Sikhs and their Religion covering the Guru Period from 1469-1708, edited by Dr. Kirpal Singh and Dr. Kharak Singh (published in the year 2004), Sikhism by Professor Hew McLeod, Professor Emeritus University of Otago Dunedin, New Zealand (YODA Press, 2010), Sikh Rehat Maryada (formulated by the Shiromani Gurdwara Prabandhak Committee in 1945) etc.
The Court further observed that every Court would have an inherent power to ensure orderly conduct of its proceedings and the Presiding judge would have absolute control of the court domain. But like any other power, the exercise of such inherent power, even in its widest amplitude, would be subject to the provisions of Constitution. The petitioner being an Amritdhari Sikh is enjoined by his religion to, at all times, wear the five kakars, of which kirpan is one. The Constitution explicitly and in the plainest terms secures to the petitioner the right to wear and carry kirpan as being included in the profession of his religion. As per Explanation I of Article 25, the wearing and carrying of Kirpans is deemed to be included in the profession of the Sikh religion. This right could only be subject to regulation in the interest of public order, morality or health, which regulation could be only by the mandate of a statute. In Commr. of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, the Supreme Court held that the freedom to act and practice in pursuance of religious beliefs is as important as the freedom of believing in a religion.
It was emphasized that to persons believing in a religious faith there are some forms of practising the religion by outward actions which are as much a part of religion as the faith itself. Though the Article 25 was subject to public order, morality and health, but it was stressed that in every case the power of regulation must be exercised with the consciousness that the subject of regulation is the fundamental right of religion and the regulation does not unduly infringe the protection given by the Constitution.
Moreover, in recognition of the fundamental rights of the Sikhs to wear and carry kirpans as part of the profession of Sikh religion, the Kirpans carried or possessed by Sikhs are exempted from the provisions of Section 4 of the Arms Act, 1959. This exemption applies to all parts of India where Section 4 applies. Thus, no licence is required for a Sikh to wear or carry a kirpan.
Hence, in the absence of any law or valid regulation prohibiting the carrying of a Kirpan in a Court room, the petitioner could not be restrained from wearing and carrying a kirpan in the Courtroom. There was nothing in the impugned order to suggest that the petitioner was indulging in any disorderly behaviour, or that he had any past history of violent crime or that there was any other cause for even the remotest apprehension in the mind of the Presiding Judge of his behaving violently and causing harm or injury to any person. Assuming there was any such apprehension, in that event also, in the first place, any suitable protective measure, short of asking him to remove the kirpan could have been resorted to, like stationing security personnel around or close to him.
Therefore, Court held that such an order, on the face of it, is illegal and unconstitutional.