On 3 January, 18-year-old Nazanin was sentenced to death for murder by a criminal court, after she reportedly admitted stabbing to death one of three men who attempted to rape her and her 16-year-old niece in a park in Karaj in March 2005. She was seventeen at the time. Her sentence is subject to review by the Court of Appeal, and if upheld, to confirmation by the Supreme Court. According to reports in the Iranian newspaper, E’temaad, Nazanin told the court that three men had approached her and her niece, forced them to the ground and tried to rape them. Seeking to defend her niece and herself, Nazanin stabbed one man in the hand with a knife that she possessed and then, when the men continued to pursue them, stabbed another of the men in the chest. She reportedly told the court “I wanted to defend myself and my niece. I did not want to kill that boy. At the heat of the moment I did not know what to do because no one came to our help”, but was nevertheless sentenced to death. [Link]

The court’s judgment has, to some, further exposed the unfairness of Islamic law with respect to women. As others have pointed out, Nazanin may have been unable to prove that she acted in self-defense because of certain evidentiary rules in Islamic law that place greater weight on the testimony of males.

The women asked, “O Allah’s Apostle! What is deficient in our intelligence and religion?” He said, “Is not the evidence of two women equal to the witness of one man?” They replied in the affirmative. He said, “This is the deficiency in her intelligence. [Link]

Accordiginly, Nazanin and her niece may have testified that the three men attempted to rape them, but the testimony of the two surviving men would have successfully refuted this claim.

(For those interested, there is an online petition to “save” Nazanin, which will be submitted to UN Secretary General Kofi Annan and others.)

The case has also reinvigorated the debate about whether the death penalty should be applied to teenagers (an issue the Supreme Court of the United States recently addressed in Roper v. Simmons), and whether capital punishment should be abolished entirely.

In India, rape is not punishable by death, however some have argued that the availability of capital punishment should extend to rape cases. Columnist Vir Sanghvi, for example, suggested that “rape is as bad as murder,” particularly because of the nature of Indian society:

It is almost impossible to recover and lead a normal life after you have been raped in India. First of all, you probably can’t talk about it. Secondly, in many cases, even when you do complain, no action is taken against the rapist. Thirdly, you are finished on the arranged marriage market and if you’re already married, your husband acts as though you are now shop soiled. And finally, far from being counselled to cope with the trauma of rape, you face a new trauma: society’s hostility. [Link]

On another note, my stint as a guest-blogger has come to an end. I again want to thank Abhi, Sajit, and the rest of the SM crew for allowing me to contribute to this blog. This site is the preeminent forum for desis and those interested in the stories, issues, and events relevant to our lives. To be able to participate in this manner was an honor. At the beginning of the month, I said:

I hope that I will able to present a unique perspective to certain issues and enrich the existing intellectual dynamic on this exceptional site. [Link]

I hope I’ve accomplished this, and to the extent that my entries fell short of this stated goal, I apologize.

The reaction to the apparent cyber-squatting demonstrates the importance of this forum to many individuals, including myself. (You should know that I was not aware of what was going on behind the scenes; in fact, on Thursday I sent an email expressing my disappointment to Abhi, and even last night I told Sajit what little I thought of “Happy Hippie”.)

This site serves not only as a marketplace of ideas, but as a reminder of how small the world truly is. Indeed, Sonny Caberwal of Tavalon is an old family friend. And, I had the pleasure of meeting Taz several years ago in LA. I hope that she will also benefit from this experience, and I’m confident that the SM readership will be as kind to her as it was to me.

With thanks, Dave

Petitioner Salid Ahmed Hamdan is a detainee being held at Guantanamo Bay, Cuba. He was captured in Afghanistan in November 2001 and admits to being a personal bodyguard and driver to Osama bin Laden. He was charged with conspiring to commit acts of terrorism, and was to be tried before a military commission, which is a special adjudicatory body created by Presidential order to try individuals accused of war crimes. [Link]

The procedural history, or how the present case made its way to the Supreme Court:

Before trial, Hamdan challenged the lawfulness of the military commission that was to try him, and in November 2004, the D.C. District Court enjoined the military commission proceedings as illegal under the Geneva Convention and the Uniform Code of Military Justice (UCMJ). The Court of Appeals for the D.C. Circuit reversed, holding that military commissions had been duly authorized by Congress; that relief was unavailable under the Geneva Convention because it did not create privately enforceable rights and because it did not apply to Al Qaeda; and that the UCMJ did not preclude HamdanÂ’s trial before military commissions. [Link]

Hamdan appealed to the Supreme Court and in November 2005, the Supreme Court agreed to review the case. Chief Justice John Roberts recused himself, as he served on the D.C. Circuit Court panel that upheld the war crimes tribunals. (Some are calling for Justice Antonin Scalia to step aside as well because of comments he recently made in Switzerland, see here.)

Respected desi law professor Neal Katyal is arguing the case on behalf of Hamdan. There are two questions (.pdf) before the Supreme Court. The first is a threshold inquiry regarding the Court’s jurisdiction to hear the case. The government contends that the Court should dismiss the case on jurisdictional grounds:

[The government] argue[s] that the Detainee Treatment Act of 2005 (DTA), enacted by Congress after the Supreme Court granted certiorari in this case, preclude pre-trial review by establishing an exclusive post-trial review process for all Guantanamo detainees. In addition, the Government has argued, even absent the DTA, the Court should withhold ruling on the merits until a final decision has been reached in accordance with traditional abstention doctrine. Petitioner, on the other hand, argues that Congress specifically modified the effective date provisions of the DTA to ensure that the Supreme Court could decide this case.[Link]

Second, as to the merits:

petitioner argues [in part] that the military commission that seeks to try him is not authorized to do so under U.S. law. [H]e argues that such authorization must be explicitly provided by Congress. Respondents dispute whether such explicit authorization is required, pointing to the historical practice of the President convening military commissions as evidence of his inherent “Commander-in-Chief” power to do so. [Link]

The Supreme Court issued a statement noting that it will expedite the release of the audio transcript of today’s hearings. If any SM readers have any thoughts on the case, before or after listening to argument, please post them in the comments section. (Some legal commentators are already speculating that the case may come out tied, 4-4 (with Chief Justice Roberts not participating, as noted above). As expected, others disagree, arguing that the government will prevail.) I hope to share my reaction to the argument with you as soon as I listen to the audio of the proceedings.

For court documents and further information on the background of and arguments in this case, please visit this site, which is apparently operated by counsel for Hamdan.

Related topics: The “Devils” Advocates; The art of the book review.

A new book by historian David Gilmour, The Ruling Caste: Imperial Lives in the Victorian Raj (Farrar, Straus and Giroux 2006), “helps explain how [the British civil servants in India] pulled it off.”

In yesterday’s Washington Post, noted author and UN official Shashi Tharoor gave a generally favorable review of The Ruling Caste. In Tharoor’s view,

The Ruling Caste paints an arresting and richly detailed portrait of how the British ruled 19th-century India — with unshakeable self-confidence buttressed by protocol, alcohol and a lot of gall…. [For example,] one 24-year-old district officer found himself in charge of 4,000 square miles and a million people [Link]

The arrogance of the British administrators and the paternalistic means by which they viewed their Indian subjects is upsetting, though not unsurprising. One viceroy is quoted by Gilmour as saying:

“We are all British gentlemen engaged in the magnificent work of governing an inferior race.”

According to Gilmour:

Few shared Queen Victoria’s “romantic feelings for ‘brown skins….’” Well into the 20th century, they spoke and wrote of the need to treat Indians as “children” incapable of ruling themselves.

Despite Gilmour’s insights into the personal lives and thoughts of these administrators, Tharoor is critical of the book’s failure to examine the Indian response to the British public officials, who were “members of the Indian Civil Service (ICS)”:

What is missing, though, is any sense of an Indian perspective on these men and their work. What did the subjects of their administration think of them? Gilmour does not tell us. He glosses over the prejudice and casual racism of many ICS men.

Thankfully, there are other sources for this information. For starters, former SM guest-blogger Amardeep Singh has this post on an address by Manmohan Singh in which the Prime Minister states:

There is no doubt that our grievances against the British Empire had a sound basis for…. Indeed, at the beginning of the 20th Century, “the brightest jewel in the British Crown” was the poorest country in the world in terms of per capita income. However, what is significant about the Indo-British relationship is the fact that despite the economic impact of colonial rule, the relationship between individual Indians and Britons, even at the time of our Independence, was relaxed and, I may even say, benign.

This was best exemplified by the exchange that Mahatma Gandhi had here at Oxford in 1931 when he met members of the Raleigh Club and the Indian Majlis. The Mahatma was in England then for the Round Table Conference and during its recess, he spent two weekends at the home of A.D. Lindsay, the Master of Balliol. At this meeting, the Mahatma was asked: “How far would you cut India off from the Empire?” His reply was precise – “From the Empire, entirely; from the British nation not at all, if I want India to gain and not to grieve.” He added, “The British Empire is an Empire only because of India. The Emperorship must go and I should love to be an equal partner with Britain, sharing her joys and sorrows. But it must be a partnership on equal terms.” This remarkable statement by the Mahatma has defined the basis of our relationship with Britain. [Link]

In devising a suitable uniform, the school went to immense trouble to accommodate the religious and cultural preferences of the pupils and their families. There was consultation with parents, students, staff and the Imams of the three local mosques. One version of the uniform was the shalwar kameez (or kameeze), a sleeveless smock-like dress with a square neckline, worn over a shirt, tie and loose trousers which taper at the ankles. [Link]

In accordance with her religious beliefs and consistent with the school’s uniform requirements, Shabina wore a salwar kameez, or “shalwar kameez” as noted above. She did so for the first two years of her time at Denbigh. However, she later determined that the salwar kameez would not be appropriate for her to wear.

Her brother Shuweb Rahman says that “as Shabina became older she took an increasing interest in her religion” and through her interest in religion “discovered that the shalwar kameez was not an acceptable form of dress for Muslim women in public places.” [In 2002, Shabina] turned up at school wearing a long shapeless black gown known as a jilbab. [Link]

The school’s response? The assistant head master told Shabina to “go home and change.” She went home and never came back.

Shabina sued, claiming that her freedom to manifest her religion was violated. Yesterday, five Law Lords unanimously disagreed, holding that

there was no interference with the respondent’s [i.e., Shabina's] right to manifest her belief in practice or observance. [Link]

The Lords apparently reasoned, in part, that Shabina could have simply gone to another school nearby that had a more suitable uniform policy:

there were three schools in the area at which the wearing of the jilbab was permitted…. There is, however, no evidence to show that there was any real difficulty in her attending one or other of these schools…. [Link]

Apparently one of the justifications for refusing to permit the jilbab was health and safety. Tahir Alam of the Muslim Council of Britain had this to say:

One of the main reasons Denbigh did not allow the jilbab was health and safety, and you have to ask yourself how many people have fallen over and died because they tripped on their jilbab?…. It’s an excuse really. [Link]

Those disappointed in the result should note that the Lords stated, at the beginning the opinion, that the decision was limited to the facts of the individual case:

It is important to stress at the outset that this case concerns a particular pupil and a particular school in a particular place at a particular time. It must be resolved on facts which are now, for purposes of the appeal, agreed. The House is not, and could not be, invited to rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country. That would be a most inappropriate question for the House in its judicial capacity, and it is not one which I shall seek to address. [Link]

to bring national awareness to the decades-long careless disregard of effective U.S. immigration law enforcement. It is a reminder to Americans that our nation was founded as a nation governed by the “rule of law,” not by the whims of mobs of ILLEGAL aliens who endlessly stream across U.S. borders…. Future generations will inherit a tangle of rancorous, unassimilated, squabbling cultures with no common bond to hold them together, and a certain guarantee of the death of this nation as a harmonious “melting pot.” The result: political, economic and social mayhem. [Link]

Not surprisingly, the MPP has generated a signficant amount of controversy: it has been accused of being racist, ineffective, illegitimate, and of having ties to Neo-Nazis. Last year, legal observers from the American Civil Liberties Union and the University of Arizona monitored the activities of the MMP volunteers, before the MMP left Arizona in April 2005. One concerned onlooker had this to say about the MMP’s work:

“It’s going to encourage a lot of negative implications for brown-looking people, if you want to call it that, racial profiling….” [Link]

To be sure, citizens can be an integral part of a wider law enforcement initiative. For example, community policing — which involves collaborative efforts between the police and members of the general public, and which demands compassion from the police towards the communities they serve — has shown encouraging signs of success, particularly in areas with high concentrations of minorities, such as Miami. However, the MPP is not a part of an official border patrol program; it is a self-appointed entity that acts in isolation and with an unfortunate view of diversity and multiculturalism. Moreover, there are fears from human rights organizations as to how the MMP actually carries out its patrolling efforts – through directly confronting migrants, apprehending them, or worse. There is, obviously, a human element involved with immigration (e.g., the sacrifice involved, the struggle to cross, and the motivition to provide a better life for the immigrant, his or her family, and those back “home”). The stories of Indians coming to the United States with little or no command of the English language, modest amounts of money, and uncertain job prospects come to mind. In fact, these stories lead me to appreciate all newcomers and immigrant hopefuls.

The Border Film Project researches this human element. In order to understand “the humanity present on both sides of the border,” the Project selected an unusual means: it

distributed hundreds of disposable cameras to two groups on different sides of the U.S.-Mexico border: undocumented migrants crossing the desert into the United States and American Minutemen trying to stop them. [Link]

The photos themselves are extremely gripping and present an interesting insight into the differences between the migrants and the Minutemen.

To anyone concerned with the MPP’s mission and its work, the MPP announced this week that it is not only returning to Arizona, but is expanding its operations to other states, including California, New York, and Washington.

Yes my friends, bring your passport – even for domestic travel.

Of greater interest to me were the numerous stories of NRI’s attempting to improve their villages. For example:

For a long time non-resident Indians have been donating for causes associated with their native villages or hometowns for schools, dispensaries or roads. In what is a rare example of donation targeted specifically for carrying out the battle against AIDS, cancer and TB in Punjab, a New York-based NRI today told the Punjab Government that he would spend $1 million (Rs 4.5 crore) on the project…. Mr [Surinder Singh] Dhall said: “If I am satisfied, I will donate even more than $1 million. It was my wish to donate for a larger cause and not restrict myself to building roads or schools in my native village.” [Link]

One reason I was in India was to attend a three-day conference sponsored by the alumni association of my father’s medical school, the Amritsar Medical College. The conference was organized in part to display the deteriorating condition of the college’s hospital and to generate interest in NRI investment into the campus. The response from the alumni was overwhelming; some graduates felt as though it was their duty to “give back” to the institution that had provided them with a living and with fond memories.

After Amritsar, I stopped by the Guru Nanak Mission Hospital, where I met a family friend from America who has committed himself towards improving this hospital and expanding its current capabilities. Again, I encountered an NRI who was devoting his time and money to a charitable cause in India.

And, even on the flight back to America (of all places), I ran into a friend who had spent three months in India managing the India-branch of his technology company. His interest seemed purely business-oriented, but in a larger sense he is still investing in the country.

The experience in India left me thinking: as an Indian individual who was born and raised in the United States, what is my moral obligation to providing anything to India or resident Indians, whether it be financial support, investment capital, professional expertise, or simple seva, or selfless service. The easy answer is, it depends. To be sure, it does depend on a lot of different factors, including one’s resources and availability. And, of course, each person will have their own sense of obligation towards India, if any at all.

Further complicating matters is the question of whether NRI’s are even welcome or entitled to improve India, a question that is currently being explored on The Great Indian Anomie blog:

It’s interesting how often people try to shut me up by calling me an NRI (Non Resident Indian). What does she know? She’s an NRI. How can she talk about issues in India? She’s an NRI. What right does an NRI have to talk about development in India when she sits in London choking over her Starbucks Mocha?… So what if she’s spent 97.57% of her life in India, the minute she finds herself in an non-Indian postcode – she’s an NRI. What is an NRI anyway? Someone who will never return? Someone who may return? Someone who sends remittances? Someone with a family name that sounds Desi? So India is off-bounds to an NRI, because she doesn’t live there anymore (even if temporarily). UK should be out-of-bounds to me because I’m not “from” here. I shouldn’t comment on the rest of the world – because well I haven’t seen it.

Another problematic factor is the rampant corruption in India, which NRI’s may not be accustomed to or comfortable with. For example, an NRI, Lajpat Rai Munger, built an engineering and IT college, but then simply gave it to Punjab University. Why?

Although the institute cost him Rs 210 million ($4.7 million), he would have none of it any more. The NRI from California says he was disillusioned with the Indian system. “Corruption and nepotism at every step have irritated me the most,” Munger told the agency…. “I gave up after finding that even after investing so much money in my country of origin, I had to grease palms at every governmental level – be it for getting approval for various courses or any day-to-day administrative matters.” [Link]

The attitudes of resident Indians and corruption aside, there remains the individual question of whether there is a moral obligation to give back in some sense. My answer? Shiet, ask me in about forty years.

Categorizing these stories in this way not only stigmatizes certain vestiges of the “old school,” but also places or elevates the critic into a different world, a “modern,” “civilized,” or “Western,” one in which specific qualities — such as individual choice and gender equity — are at a premium. But, while disassociating one’s self from the old school has its psychological benefits, it would be a mistake to think that the women born and raised in the West are free of humiliation in the marriage or courtship process.

Recently, I have been reading a blog called British Born Confused Desi (BBCD). The author describes herself as:

a Londoner who has her foundations firmly rooted in her Pakistani heritage. I face a constant state of confusion as I battle between trying to be a good Pakistani girl and a modern British woman.

She writes candidly of her experiences as a prospective bride. Her posts give the impression that she is an unwilling participant in a draft, where the male suitor and his family thinks they have the final say as to whether they want to select this “free agent” girl.

My folks have a family coming over to see me tomorrow, I hate doing things the traditional way. It really is a meat market situation and for some reason the “boy side” always seem to think that its their meat to buy. [Link]

And when the family eventually came to “view” BBCD:

Today after a very long time I was made to feel like a piece of meat…. . We got on pretty well for a first meeting.. His mother on the other hand spent two hours staring at me making me feel so uncomfortable, I dont think she liked me at all, Im quiet sure that i was too “modern” for her. His father didnt smile at me even once, i think both the parents have been on a course as too how to intimidate a person…. Anyway as per usual in our silly community system of arrange marriages, lets just wait and see what “they” say. At least with last weekends bunch I wasn’t interested in him at all. [Link]

It is convenient to think of certain problems with marriage as confined to sectors of life that one does not inhabit or frequent. But, BBCD, who feels like chattel, could be my friend, neighbor, or colleague – not the resident of some pind, or village. I shudder to think how many other women in our “modern,” “civilized,” or “Western” society have experiences similar to BBCD’s – experiences that should be addressed, even if they are not as graphic or inconceivable as the four stories above.

When Sajit and I wrote for The Satya Circle, I asked in an essay, “is the war on terror more than a battle between arms and men, but between mentalities and worldviews as well?”

[T]he fact remains there is a large and growing disparity between the American worldview and that of other nations and cultures…. The disparity in understanding between America and other nations and cultures might serve as AmericaÂ’s biggest foe, not any military regime or any set of terrorist groups…. [T]he American worldview must expand in order to understand, yet by no means accept, the ideology and reasoning of the Taliban and others sharing its hatred, even if what the Taliban practices and preaches is beyond any reasonable sense of morality…. Destroying Al Qaeda and punishing those who sponsor, harbor, or otherwise encourage terrorism is not sufficient and cannot make the country truly safer or without real threat…. Unless and until America engages in such serious introspection and in the enterprise of comprehending the subjective worldview of the Islamic fundamentalists and others, America cannot take real long-term, proactive steps towards preventing another attack. [Link]

Now, this was written before the Iraq war. Since then, we have engaged in said war, arguably tortured, humiliated, and denied due process to Muslim detainees — reports of which have had the effect of further aggravating Iraqis and others, and contributing to the will that legitimizes and effectuates acts of terrorism.

Indeed, President Bush himself said yesterday:

[W]e cannot let the fact that America has not been attacked since September the 11th lull us into the illusion that the terrorist threat has disappeared. We still face dangerous enemies. The terrorists haven’t lost the will or the ability to kill innocent folks. [Link]

This extant will has led some to argue that the United States is actually losing the war on terror: killing suspected or prospective terrorists is insufficient and counterproductive, it is said, if doing so further inflames terrorist groups and their supporters. Certain U.S. policy is, in other words, a recruitment device. And it would be a mistake to assume that only fundamentalists or the impoverished are signing up; those interested in harming the United States for its actions include the educated and advantaged (see, e.g., “UNC Attack Suspect Wanted to Punish Gov’t“).

The interesting question is not whether the arms/men vs. will framework is an advantageous one, but how the concept of “winning the war of ideas” can be implemented into tangible policy.There are, I hope, many plausible answers. I’d like to share just one with you today. As a graduate student, I wrote a brief paper arguing that the administration should create a Brain Trust of academics, policy wonks, and others who are intimately knowledgeable of and interested in the welfare, mentality, and condition of Islam and Islamic nations. Any potential American policy related to those people, nations, and the “war on terror” could then be “run by” this group of individuals to determine what, if any, counterproductive effect the policy would have related to the war effort. Rather than have reactions to American policy manifest itself in riots and protests in the streets (or worse), the Brain Trust would serve as an internal advisory panel that could vet not only the spin, but the substance of related American policy to minimize, control, or prevent negative consequences of the policy. If the nation can create a Department of Homeland Security, then why not this group?

To be sure, there are several problems with this idea. The first is a pragmatic one dealing with resources: America has had trouble recruiting translators, let alone talented policy advisors. The second is a more political one: the Republicans were successful in portraying John Kerry and John Edwards as “soft” on war and as inhabitants of a “pre-9/11 world.” The question for American voters, as presented by the GOP, was straightforward: who would you rather have fighting Osama (Needick), Kerry/Edwards (Screech Powers) or Bush/Cheney (A.C. Slater)? Arguing for this Brain Trust or any quasi-diplomatic solution may be thought of as a weak and therefore politically unviable strategy.

In any case, there are encouraging signs, such as the appointment of Karen Hughes to serve as Under Secretary for Public Diplomacy and Public Affairs. But, this appears to be a band-aid on what is otherwise an extremely complex and important part of America’s war effort — one that requires substantive solutions, not just spin.

One can only hope that the nation does more to win the war of ideas….

The Forum for Academic and Institutional Rights (FAIR), an association of law schools and professors that oppose discrimination on the basis of sexual orientation, alleged that the Solomon Amendment infringed on its First Amendment freedoms of speech and association due to the militaryÂ’s discriminatory recruitment practices (i.e., “donÂ’t ask, donÂ’t tell”). (See Abhi’s previous post on the case here.)

The U.S. Supreme Court unanimously ruled against FAIR yesterday, issuing an opinion [.pdf] that upholds the constitutionality of the statute and that in effect gives FAIR three-snaps in a Z-formation (i.e., the “Zorro snap“). (While some legal commentators predicted a unanimous outcome, I honestly did not think a case this contested in the public sphere would yield an 8-0 result.)

Joan Biskupic of USA TODAY described the Court’s reasoning:

“Accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions.” [T]he basic communications required of colleges were bulletin board notices and e-mails [which] hardly could be compared to the kind of “compelled” government speech that has been invalidated through the years, such as a West Virginia law that required schoolchildren to recite the Pledge of Allegiance and to salute the American flag, or a New Hampshire law that ordered the state motto — “Live Free or Die” — to be on license plates. [Link]

As this astute (and hopefully single) desi notes on her blog, Mia Culpa:

The decision boosts the Bush administration as it struggles to maintain recruiting levels to wage wars in Iraq and Afghanistan. It’s a defeat for Harvard, Yale, Columbia and other universities that accused the government of intruding on academic freedom. [Link]

I was interested in this case in part because the Court could have addressed the extent to which the government can use Federal funding as a means to ensure compliance with Federal civil rights laws, including Title VI of the Civil Rights Act of 1964, which generally prohibits discrimination on the basis of race, color, or national origin in all programs or activities that receive Federal financial assistance. Title VI may be used to challenge racial profiling and hate crimes.

The government argued that the Solomon Amendment is analogous to Federal civil rights statutes, in that the government may impose conditions on institutions that receive Federal funding. FAIR, however, contended that the Solomon Amendment is different, as the government cannot subject recipients of Federal financial assistance to conditions that violate the Constitution. (FAIR also claimed it is ironic that, in defending the Solomon Amendment, the government invoked civil rights laws in its attempt to require the schools to assist discrimination.)

But, the Court disagreed with FAIR. In stating that the Solomon Amendment does not place an unconstitutional condition on the receipt of Federal funds, the Court also noted that the First Amendment would not prevent Congress from directly imposing the statuteÂ’s equal access requirement.

The school board agreed with Descoteaux’s initial reaction, stating that the kirpan violated its code of conduct, which prohibits the carrying of weapons. The boardÂ’s council of commissioners upheld that decision, but told Gurbaj and his parents that Gurbaj would be permitted to wear a kirpan-shaped pendant or a kirpan that was made of some other material (e.g., plastic or wood), not metal. Gurbaj’s father sued, claiming his son’s rights under the Canadian Charter were violated.

The Supreme Court of Canada unanimously sided with GurbajÂ’s father, holding that, “The council of commissionersÂ’ decision prohibiting [Gurbaj] from wearing his kirpan to school infringes his freedom of religion,” as guaranteed by Section 1 of that Charter.

The Court described the importance of this specific right as applied to Gurbaj:

Religious tolerance is a very important value of Canadian society. If some students consider it unfair that [Gurbaj] may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instil in their students this value that is at the very foundation of our democracy. A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others. Accommodating [Gurbaj] and allowing him to wear his kirpan under certain conditions demonstrates the importance that our society attaches to protecting freedom of religion and to showing respect for its minorities. The deleterious effects of a total prohibition… outweigh its salutary effects.

Balancing an individualÂ’s general right of conscience (manifested by religious expression or moral objection, for example) against competing considerations of the general public, such as health or safety, is a difficult and problematic exercise, one which will not result in a satisfactory outcome for all interested stakeholders.

Complicating matters is the fact that, as Dahlia Lithwick noted recently in Slate, “The right of conscience, ultimately, is a subjective one.” And, as the Supreme Court of the United States stated in addressing an individual’s refusal to receive a mandatory vaccination for smallpox:

Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.

Similarly, some argued that GurbajÂ’s kirpan presents a safety threat to others in the school and that his religious beliefs, however sincerely held, do not outweigh this threat:

[GurbajÂ’s] presence at the school prompted about 30 parents to yank their children from school in protest, insisting that a kirpan was a dangerous weapon.[link]

On the other hand:

The Kirpan is an ingrained part of the Sikh religion…. The Kirpan has been an integral part of the Sikh religion since it’s early inception and has a very sacred religious symbolism for Sikhs. To suggest that it is a ‘dagger’, or a ‘weapon’ or merely a cultural symbol is both misleading and offensive to Sikhs.[link]

Gurbaj and his family should be thanked for taking this case all the way up to the Supreme Court, and for convincing that Court to hand down a decision that protects the rights of all Canadian Sikh students. Respek.

A point of personal privilege: I would like to thank the ballers at SM, particularly Sajit, for inviting me to contribute to this important substantive forum. I noticed that some of the commenters called for a female or lesbian/gay guest-blogger. I am neither, but I hope that I will able to present a unique perspective to certain issues and enrich the existing intellectual dynamic on this exceptional site. Let’s do this!