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LE MONDE ARTICLE ON THE French Turban case due for judgment on 19 April 2005 (English translation)

Expulsion Case of three Sikh students before the Administrative Court LE MONDE | 13.04.05 | 14:43 hrs o Updated on 13.04.05 | 14:43 hrs

"Visible" or "ostensible" insignia: the debate which shook the National Assembly during deliberations on the bill pertaining to wearing of insignia manifesting a religious affiliation in schools has resurged on Tuesday, the 12th of April before the Administrative Court of Melun (Seine-et-Marne), where the case of appeal filed by three Sikh High School children against Créteil's Directorate of Education's action ultra vires came up for hearing.

Enrolled in Grade 10, 11 and 12 at the Louise-Michel High School at Bobigny, Jasvir, Bikramjit and Ranjit, aged 14, 17 and 18 years respectively, were refused access to classes at the time of school reopening in September 2004 because they were wearing an under-turban, called "keski". The Sikh religion prohibits cutting hair and prescribes that the men wear a turban to protect the same.

In order to abide by the law dated 15th March 2004, the three students had accepted to cover their hair only with a thin black coloured cloth, which is less voluminous than the keski, covering the hair but leaving the forehead, neck and ears uncovered.

The High School Management, considering this headdress as an insignia manifesting a religious affiliation in an ostensible manner, had expelled the three students from the school indefinitely on the 5th November 2004. The Director of Education of the Créteil Academy confirmed this decision on 10th December 2004.

During the hearing, the Government Representative, with the charge of giving legal advice and not of representing the Government demanded that the three petitions be rejected. "The under-turban leads the person who is wearing it to be immediately recognized as a follower of the Sikh religion. It is not less ostensible than a kippa", he stated at the same time admitting that the integration of the Sikh community had never caused any special problems.

If the jurisprudence of the State Council, prior to the law, had prohibited religious insignia which would constitute an act of provocation or proselytism because of the conditions in which they are worn or due to them being ostentatious or a declaration of religious affiliation, "it is not anymore the way it is worn but the wearing itself of an insignia manifesting a religious affiliation which is today prohibited by the law", insisted the commissioner, Didier Salvi.

Declaring the interpretation of the law made by the Directorate of Education as being erroneous, the advocates of the three High School children have chosen to stress on the absence of "proselyte intention".

"In his formulation of the law dated 15th March 2004, the legislator has insisted that only the wearing of an ostensible sign can be subject to legislation", affirmed one of the lawyers, Advocate Felix de Belly, recalling that during the parliamentary debates, the recommendation of the communist deputies to prohibit wearing of all "visible" religious insignia was rejected by the Government and the Parliamentary majority, since such a position violates the constitutional and international provisions guaranteeing religious freedom.

"By making the semantic choice of the word ostensible, the legislator invites the School Principal, the President of the Academy and if necessary, the judge to look into the intention of the student and not just consider what they see on him", insisted Advocate de Belloy. Moreover, according to him, the wearing of a cross, a veil or a kippa, by being optional, reveal as much a desire to exteriorize one's faith, as the turban is not an accessory destined to manifest the same for a Sikh.

"There is not a single Sikh who does not wear a turban. Their intention is just to protect a sacred hair which is, in the Sikh religion, God's gift and the Republic cannot take it away from them", he argued.

For Advocate de Belloy, the single fact that the believer does not have the free choice of wearing this piece of cloth is sufficient to demonstrate that there is no proselyte intention, that is to say, desire to show their religious belief since there is no intentional element: the Sikh must essentially protect his hair.

For Advocate Antoine Beauquier, another lawyer of the High School students, the Directorate had penalized wearing of a "visible" insignia: prohibiting Sikhs to wear the keski does not come anymore under the category of "ostensible", a word figuring in the law, but leads to penalizing the visible and hence penalizing a religious characteristic," he affirmed. "If we fight our case on this ground, we shall win in the European Court of Human Rights, he added after the hearing.

The judgment shall be delivered on 19th April to ensure that it can be pronounced "before the beginning of the third trimester", stated the Presiding Judge of the Court, Guy Roth.

Laetitia Van Eeckhout
Article appeared in the edition dated 14.04.05