In a guest post, Professor Satvinder Juss of the Dickson Poon Law School at King’s College London looks at a recent Australian case on the right of observant Sikhs to carry a kirpan.
Western thinking about objects in the physical world is rooted in the concept of essences. Ironically, a Sikh kirpan, viewed from this perspective, deprives it of its essential attributes. A recent Australian decision in the case of Athwal v State of Queensland [2023] QCA 156 [1] highlights the problem. Although the decision is right, it is so for the wrong reasons. What is needed is a more open embrace of the anti-essentialism which characterises Eastern religious thought and which enables the use of religious symbols to be more easily accommodated in the public sphere.
1. The Concept of Essences
Western thinking about objects is rooted in a particular philosophical understanding about things in the physical world. Such thinking goes back to antiquity. It derives from Aristotle’s definition of things in terms of their ‘essences’.[2] When Aristotle talked about the ‘essence’ of a thing, what he meant was that the essence is the attribute that makes a thing be what it fundamentally is.[3] According to this philosophical construct, a thing has a certain property or metaphysical characteristic which is necessary to possess it with a ‘nature’ that helps us to distinguish it from sets of attributes which are simply contingent or merely accidental to the thing.[4] For they do not define the thing with its essential nature. In Western thinking, the kirpan is invested with the same essences and attributes as a ‘blade’, a ‘dagger’ or a ‘sword’ and a kara is invested with the attributes of nothing more than an ordinary bangle on a wrist. All are possessed of the same essential qualities that enable us to make sense of it as an object. Each of these objects, according to Aristotle, has the same specific power, the same function, and the same internal relations as the other. In this way, each one of these objects is enabled to be the kind of thing that it is. The essence thus defines the thing. It makes it what it is. Consequently, the kirpan or the kara could be defined in terms of their essences. Such certainty had much to commend it, and Aristotle’s thinking had such a profound effect in Western philosophical traditions that it continued virtually unchanged during the Scholastic period.[5]
One influential philosopher of the twentieth century, Edmund Husserl (1859-1938), who is accredited with founding the phenomenological movement, suggested that the search for essences can only be meaningful when applied to a specific category of human experience.[6] Other western philosophers such as Willard Van Orman Quine (1908–2000) have argued that only in the description of certain phenomena does Aristotle’s notion of defining a thing in terms of its essences actually work. For the most part objects do not have essential properties that help to define them.[7]
If this is right, then one can see the meaning of the kirpan or the kara having a very different meaning from that of a knife or a bangle respectively. This is because just as the kirpan is not used to threaten, molest or to harm anyone, but stands as an article of faith for the Sikh people, so is the kara not an emblem of personal jewellery for a schoolchild but a reminder to her of her commitment to her God. Metaphysical assertions should, therefore, not be used to describe an essence as the necessary property of real objects because if we do this, we ignore our experience of the object in question – which in the case of both the kirpan and the kara is entirely benign. Eastern thinking takes exactly that view, and these modern philosophical tenets are actually more akin to the different forms of Eastern thought, which believe that all phenomena are devoid of essence. Indeed, a Sikh would be surprised – if not alarmed – at any suggestion that the kirpan or kara had any malign connotations because the very root of Eastern thought rejects anti-essentialism. From the perspective of the religiously observant, a Sikh who wears a kirpan is not wearing it because it is a weapon. A person who wears a kara is not wearing personal jewellery. He or she is wearing it because it is part of their officially prescribed religious uniform. Yet, to an uninitiated Western mind, it may be perceived wholly differently as something already known in the physical world.
To say that the kirpan is intrinsically dangerous or a kara an emblem of fashion is, however, to continue to subscribe to Aristotle’s philosophy of essences, which no doubt still retains an enduring effect on Western thought. It is, however, apt to lead to serious misunderstandings of religious artefacts. One could argue that a knife is dangerous. Or that scissors are dangerous. But they are not inherently so. Hands may be dangerous. A knife may be used for cooking purposes or it may be used to kill. Scissors may be used to cut paper in the classroom. Or they may be used to kill. They rarely are. In the same way, our hands may be used to effect greetings, to eat our food, to embrace friends, or to strangle our foes. That does not make our hands inherently dangerous. Neither do they make our hands have an inherent essence any more than a pair of scissors do. The fact is that the meaning of an object can only be understood in the context of its particular purpose and use. Outside its context, it is devoid of meaning. This is how Eastern thought views an object. The meaning of a ‘kirpan’ or ‘kara’ can only be understood in the context of its religious, cultural, and historical use. Without this context, they are apt to be misunderstood. To ban them on this basis is illiberalism of the worst kind. It does nothing to promote individual freedoms – and certainly not the freedoms of individual believers. One might just as well ban knives in the kitchen, scissors in the classroom, or the use of our hands outside the home.
2. Athwal and the kirpan
In Athwal, the Court explained how “Sikhism is a monotheistic religion that was founded in the Punjab region of South Asia in the 15th Century by Guru Nanak” and whose followers “share a religion, language, heritage and tradition”, so that “Sikhs have a distinct appearance as men and some women wear a turban” and “Sikhs have unshorn hair and men have a beard”.[8] The Court explained how orthodox Sikhs undergo an initiation ceremony, an “Amrit Sanchar”, and “which can occur at any age when a person has the maturity to understand the Sikh code of conduct” – known as the “Rahit Maryada” – when that person “is ready to commit themselves to living as an initiated” Sikh, known as an “Amritdhari Sikh”. The solemnity of the initiation ceremony is such that it “is conducted by five initiated Sikhs” who are known as “the five ‘Beloved Ones’”.[9]
And herein lies the problem for the liberal secular State. This is because, as the Court explained, “[o]nce a Sikh is initiated, they are required at all times to wear or possess the five articles of faith, which collectively symbolise that the person has dedicated themselves to the Sikh way of life”.[10] But what are these such as to provoke such controversy? They are: “a kachera (a special undergarment), kanga (a wooden comb), kara (an iron band), keshas (unshorn hair) and a kirpan (a ceremonial sword)”. Prior to becoming an initiated Amritdhari Sikh, a Sikh will live as a “Sehajdhari Sikh”, and it remains the case that “[o]ften Sehajdhari Sikhs also wear or possess the five articles of faith in preparation for the commitment they will make when initiated”.[11]
Of the five articles of faith, the kirpan is the most controversial, as the Court explained, because it “is a small ceremonial sword made of either steel or iron” although “[i]t comes in a variety of different shapes, sizes and degrees of sharpness/bluntness”. Its huge importance for an Amritdhari Sikh lies in the fact that “[t]he kirpan represents spiritual, religious and moral sanctions and rights and responsibilities of an initiated Sikh” – a significance which has never been explicated by a judicial tribunal in quite the same manner before.
However, as the Court also explained, its potential as a dangerous article is considerably diminished by the fact that “the kirpan is worn sheathed and typically concealed beneath clothing and is not publicly on display” and “is usually worn on a cloth sling called a Gatra, which holds the kirpan tightly and usually has a cloth loop to keep the kirpan within its sheath”. Indeed, in an observation of even greater significance, the Court pointed out how “[t]he use of the kirpan in a non‑ceremonial manner would be inconsistent with the Sikh code of conduct”.[12] – so much so that “approximately 80 – 90% of kirpans worn by initiated Sikhs in Australia are short and blunt without a cutting edge”.[13]
It is unsurprising, therefore, that “[i]t is a breach of religious faith and counter to the beliefs of an initiated Sikh to remove or have removed any of the five articles of faith”, so that “[i]f any one or more of the five articles of faith is removed from an initiated Sikh, they must go through a lengthy and rigorous absolution process”.[14] Against that background, the Court explained how the issue of Sikh religious practices was not likely to go away any time soon for Western society because “[o]ther than a few converted Sikhs around the world, nearly all Sikhs originate from the Punjab region” and “[n]early all Sikhs continue to have a link with family in Punjab, practise elements of Punjabi culture and speak the Punjabi language” and “[n]early all Sikh places of worship (Gurdwaras) outside of India have a Punjabi language school to keep their respective communities connected to Punjabi language and culture”. Today, one finds that “[m]illions of Sikhs have migrated from their homeland of Punjab over the last century” and “[o]ut of the 30 million adherents, it is estimated over 5 million reside outside of Punjab”.[15]
Athwal itself concerned an initiated Sikh schoolgirl who brought proceedings against the State in the Supreme Court of Queensland, claiming that Section 51(5) of the [Queensland] Weapons Act 1990 operated in a discriminatory manner to prevent Sikhs from entering a school while adhering to their religious beliefs, and so was inconsistent with the Racial Discrimination Act 1975, making the former invalid.
Section 51 (4) provided that it was not a reasonable excuse to physically possess a knife in a school for genuine religious purposes. The Court entered into a discussion as to whether a ‘kirpan’ was a knife[16] and concluded that it was, because it was “unlikely that Parliament would have objectively intended” this “to depend on the particular degree of sharpness of the blade of the instrument said to be a knife”, and not least because “[s]harpness is a relative term, and there is no statutory test for the degree of sharpness required…”.[17] The Court then asked itself whether a knife sewn into a pouch was still a knife[18] and held that it was, because “[a]s a matter of ordinary language, a knife remains a knife even though it is located in a place that is difficult to access”,[19] especially given that the definition in Weapons Act is one which “refers to a thing which is reasonably capable of being used to wound or threaten to wound anyone….”.[20]
However, its conclusion in this regard, that “[t]here is nothing in the text, context or purposes of the Weapons Act which indicates that a knife sewn into a pouch ceases to be a knife for the purposes of the Act”,[21] is problematic. It is the sort of error that lawyers not infrequently fall into. Sikh students wanting to wear the kirpan in schools has been an issue across countries as diverse as Canada,[22] the USA,[23] Great Britain, Australia, and New Zealand. Often described as “a small, curved ornamental steel dagger”[24] or “ a sword”[25] that is “commonly 7.5 centimetres long” and “is carried in a sheath and strapped to the body, usually under clothing”[26]. Court decisions have failed to capture its true essence, while still expressing liberal society’s commitment to multiculturalism, pluralism, tolerance, and broad-mindedness, which is the hallmark of the Western liberal democratic state.[27]
Finally, in Athwal the Court asked itself whether the possession of a kirpan for religious purposes is a use for a lawful purpose.[28] After noting how “[t]hese provisions as to the physical possession of a knife are made in an Act which has the object of preventing the misuse of weapons”,[29] it then made the interesting observation of how “[t]he physical possession of a concealed kirpan as a symbol of a religious commitment would, at least ordinarily, constitute a use of the knife for a lawful purpose (namely, religious observance)”.[30] However, although there was a “specific provision that physical possession of a knife in a public place for genuine religious purposes is a reasonable excuse” in Section 51(4) which “removes any doubt about that question in relation to the physical possession of a kirpan in public places other than schools”,[31] the fact was that “section 51(5) specifically provides that genuine religious purposes are not a reasonable excuse for physically possessing a knife in a school” and, therefore, the “physical possession of a kirpan by a Sikh in a school will constitute an offence”[32] under the Weapons Act.
3. Conclusion
For this reason, the Court was clear and made a declaration to the effect that Section 51(5) was inconsistent with Section 10 of the Racial Discrimination Act 1975, which prohibits discrimination on grounds of “race, colour or national or ethnic origin.” That being so, it was unconstitutional under s 109 of the Australian Constitution Act for ‘inconsistency of laws’. The Court rejected the argument that people of other religions were not put in an advantageous religion because, in the words of Dalton J, “[t]here is nothing before the court indicating the presence of any other significant group in the community whose religious beliefs require members to carry a knife” and “carrying a knife is only a feature of the religious observance of Sikhs”. That encapsulates why religious symbols cannot be viewed in terms of essentialism.
Satvinder Juss
Dickson Poon School of Law, King’s College London, Strand, London, WC2R 2LS.
References
[1] 1 August 2023.
[2] J. L. Ackrill, Aristotle’s Categories and De Interpretatione (OUP, 1975) . Also see, David Charles, Aristotle on Meaning and Essence (OUP, 2002). Further see, Charollette Witt, Substance and Essence in Aristotle : An Interpretation of Metaphysics VII –IX (Cornell Univ Pres, 1989).
[3] Aristotle, Metaphysics (London: Penguin Books Ltd.,1998), at p.168.
[4] Steven K. Strange, (1992) Porphyry: On Aristotle, Categories. (Ithaca: Cornell University Press).
[5] Though see N. Kretzmann, Anthony Kenny & Jan Pinborg (1982) Cambridge History of Later Medieval Philosophy. (Cambridge: Cambridge University Press, 1982). Also see D. Chalmers, (1999) “Is there Synonymy in Occam’s Mental Language?” published in The Cambridge Companion to Ockham, edited by Paul Vincent Spade. (Cambridge: Cambridge University Press, 1999)
[6] See esp. Jitendranath Mohanty, The Philosophy of Edmund Husserl, (Yale Univ. Press, 2008). Also see Edmund Husserl, Crisis of European Sciences and Transcendental Phenomenology, (Northwestern University Press, 1970).
[7] Willard Van Orman Quine, Word and object , (MIT, 1960).
[8] At §64
[9] At §65
[10] At §6
[11] At §66
[12] At §67
[13] At §68
[14] At §69
[15] At §70
[16] At §§96-99
[17] At §98
[18] At §§100-102
[19] At §100
[20] At §101
[21] At §102
[22] See the decision of the Supreme Court of Canada in Multani v Commission scolaire Marguerite-Bourgeoys [2006] SCC 6, under the Canadian Charter of Rights and Freedoms, where safety measures were for the kirpan to be worn under a schoolboy’s clothes, for its sheath to be made of a material (wood not metal) which meant that it would not cause injury to anyone, and it was then to be sewn into a sturdy cloth envelope. Also referred to in the UK case of Begum, R (on the application of) v. Denbigh High School [2006] UKHL 15.
[23] A case that needs to be better known is the pre-9/11 US case of Gurdev Kaur Cheema v. Harold Thompson, 67 F. 3d 883 (9th Cir. 1995), where circuit Judge Hall held that, “…. the children had to prove that their insistence on wearing kirpans was animated by a sincere religious belief and that the school district’s refusal to accommodate that belief put a substantial burden on their exercise of religion….. The children unquestionably carried their burden.” Also see http://www.hg.org/judges.html
[24] It is said that “[t]he practice of carrying the sheathed scimitar can be traced back to the lifetime of the 16th Century Sikh prophet Guru Hargobind, who regularly carried two swords as a symbol of a Sikh’s spiritual as well as temporal obligations.” See Rebecca Lowe, “Sikh dagger banned by Finchley School”, The Times, Tuesday 13 October 2009.
[25] http://www.nydailynews.com/news/national/2011/02/01/2011-02-01_michigan_school_district_allows_students_to_wear_daggers_to_class.html#ixzz1DSGsnj5g
[26] Sydney Morning Herald, 10 Feb 2010.
[27] In Sahin v. Turkey [2005] ECHR 819, the Court explained how, “Pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’ ” (at para 108). Also see, Kokkinakis v. Greece, 25 May 1993, Series A no. 260-A, p. 17, (at para 3); and see, Buscarini and Others v. San Marino [GC], no. 24645/94, (at para 34), ECHR 1999-I.
[28] At §§103-106.
[29] At §104.
[30] At §106.
[31] At §106.
[32] At §107.