An interesting judgment comes from the High Court of Ghana [“Court”] wherein the Court upheld the applicant’s ‘right to Religious freedom and manifestation’. The applicant is a Rastafarian by religion. According to the applicant, Rastafarianism is a religious movement that combines ‘protestant Christianity, mysticism and a pan-African political consciousness’. One of the key tenants/beliefs of the Rastafarian religion is wearing ‘dreadlocks.’ The applicant was refused admission to school in Ghana. He was made to stand separately during the admission process because he was wearing ‘dreadlocks’ which was apparently against the rules and regulations of the school management (which says “students must keep their hair low, simple and natural”). The question before the Court was whether the applicant has a right to manifest his religion. If yes, then are the rules and regulations of the school goes against his right to religious freedom and its manifestation or the school is justified in imposing this restriction?
Court’s Decision
The 1992 Constitution of Ghana guarantees to all persons the right to “freedom to practise any religion and to manifest such practise” under Article 21(1)(c). Whereas Clause 4 of the same Article prescribes certain restrictions on the said right of any person in the light of larger public interest, defence, public safety, order etc. Furthermore, Article 26 of the Constitution guarantees the right of every person to ‘enjoy, practice, profess, maintain and promote any religion’ subject to the Constitution. Article 17 of the Constitution is a guarantee against discrimination based on religion etc.
The Court, after analysing these rights under the Constitution of Ghana, held that the failure to admit the applicant in the school just because he was manifesting his religious beliefs goes against the values and rights enshrined in the Constitution of Ghana. It is a violation of the applicant religious freedom and manifestation, his right to education and dignity.
Court’s Reasoning: Right to Religious Freedom and Manifestation
The Court while elucidating the rights of the applicant held that any attempt to discriminate against any person’s right to practice and manifest his religion is unconstitutional. The Court did not go into the tests to analyse whether ‘Rastafarian’ is a religion or not (as the Respondents did not argue against it). Interestingly, the Court said every case “in relation to the practice and manifestation of the person’s religion, must be contextually construed and not generalised.” Individuals follow different cultures, religions and sects of religions that have different practices, if the Courts decide to analyse every such practice (as to whether is it even a practice), then the whole purpose of the Constitutional challenge will become void, rather a ‘right-based approach’ while considering the ‘larger public interest’.
The Court rejected the Respondent’s argument that if the rules apply to all students ‘equally’ then, they are not discriminatory against one person. Rather the Court reasoned that the applicant’s right to manifest his religion (by keeping dreadlocks) is his Constitutional Right and the Rules do not align with the applicant’s guaranteed constitutional rights. The Court further reasoned that “it is in the public interest that people are able to manifest and profess their religious practice”. I believe the reasoning of the Court is important as public manifestations of religion portrays plurality in the society and it increases religious tolerance which leads to a reduction in hate crimes against a minority religion.
The object of the rules enacted by the administration is to “enhance the quality of education for the benefit and academic excellence of the students” and to maintain “discipline in schools”. The objective and denial of admission of applicant seem inconsistent in the eyes of the Court as it posits a question in the judgment, “what therefore has the keeping of dreadlocks by way of manifesting of a person’s religion got to do with indiscipline in a school?” The rule of the administration goes against the rights which are guaranteed by the Constitution of Ghana without “a legitimate justification”. Every restriction placed on the rights of the citizens must be coupled with a reasonable justification for the public good (or in this peculiar case, “the community of students”).
The Court, then, relies on various decisions of the foreign courts, like Zimbabwe Supreme Court, South African Apex Court etc., as there is no case in Ghanaian Jurisdiction which dealt with the rights of Rastafarians. For instance, it relied on the decision of the Supreme Court of Zimbabwe, which was dealing with a similar set of facts wherein a petitioner was also denied admission because they manifested religious belief and the Zimbabwean Court held that growing long hair or dreadlocks “is only a manifestation of a religious belief and is not related to the child’s conduct at school.” The Ghanaian Court relied on the aforementioned decision and said that the rule must be reasonable, and proportionate as well and it held that the burden is on the respondent to prove that the rule passes the test of reasonableness and proportionality. The respondents also had a duty to prove that the applicant’s dreadlocks go against the objectives of the rules and if there is no such argument to prove the same, then the “Court will not fold its arms and watch such violation.”
Lessons to be learnt
The Ghanaian Court through its well-researched judgment holds that the rights must be interpreted liberally and the restrictions must be strictly scrutinized. Every such law that aims at restricting the rights of the citizens is unlawful and unconstitutional if it does not have a legitimate and reasonable objective and if it is not proportionate to the rights of the individual.
Furthermore, there must be a rational connection that must be established between the purported purpose of the Rule and the measure is taken. The duty to showcase that rests on the rule-making authority. It is important to keep in mind the words of the Ghanaian Court that, “the public good must outweigh an individual right constitutionally guaranteed”, then only the restriction is justified. The limitation imposed by the rule must be not so broad to ‘effectively nullify a particular right or freedom guaranteed by the Constitution.
The state has a responsibility to respect all religions and any intolerance against any religious practice and manifestation is a state failure. It will lead to a “serious anarchy in the state” and it is their duty to stop that from happening. This judgment of the Court illustrates the importance of religious tolerance in a nation. There is so much spillage of blood over religion and its manifestations in different ways (through religion-inspired dresses to food habits). Such determination of rights along with robust protection of religious freedom allows us to live peacefully despite our differences.
To understand the position of Indian Courts on Essential Religious Practice, read this article by Panya Mathur here.