France’s prohibition on wearing religious symbols in state schools breached ICCPR

Bikramjit Singh v France, UN Doc CCPR/C/106/D/1852/2008

Summary

The United Nations Human Rights Committee has found that France's restrictions on the wearing of religious symbols or clothing in state schools breached a student's right to religious freedom under the International Covenant on Civil and Political Rights.

Facts

The complaint was brought to the Committee under the Optional Protocol to the ICCPR.

The complaint was based on French Act No. 2004-228, which covers the wearing of religious symbols or clothing within the state school system. In accordance with that Act, France's Education Code provided that "[i]n public primary schools, secondary schools and lycees, the wearing of symbols or clothing by which pupils manifest their religious affiliation in a conspicuous manner is forbidden. Under the rules of procedure, disciplinary procedures shall be preceded by a dialogue with the pupil." According to France, the law is intended to maintain and protect the principles of secularism within the state's education system.

In 2004, the complainant, Bikramjit Singh, an Indian national and practising Sikh, was living in France and attending a French lycee (senior secondary school).

Mr Singh arrived at school for the beginning of the school year wearing a keski, which is a light piece of dark material worn by adult men of the Sikh religion to cover and protect the long hair which is considered a "sacred, inherent and intrinsic part of the religion". He had worn the keski the year before, apparently without issue. The school asked Mr Singh to remove the keski and he refused. The school principal initially prohibited Mr Singh from entering the school premises. Within the following month, the Principal allowed Mr Singh to return to school, but sent him to study alone in the canteen without instruction.

Mr Singh applied to an administrative court for interim measures to enable him to return to class or, at the very least, to appear before a disciplinary board and have his case properly determined. A disciplinary board was then convened and ruled that Mr Singh be immediately and permanently expelled for breaching the Code. Mr Singh appealed this decision to the education authorities and then through the court systems but was ultimately unable to return to school wearing the keski.

He continued his secondary studies through correspondence and later enrolled in a French university, where he was allowed to wear the keski.

Issues

In his communication to the Committee, Mr Singh alleged violations of articles 17 (arbitrary or illegal interference with private life) and 18 (freedom of religion) either taken separately or in combination with articles 2 and 26 (non-discrimination and equality). The case turned on the right to freedom of religion.

France defended its actions, primarily, by reference to the aims of the Act and the Code. France's submissions emphasised the importance of secularism in state schools which, it submitted, is an important mechanism for protecting religious freedoms.

More specifically, France submitted that the Act and Code were introduced following a national debate and as a means to quell the tensions and incidents sparked by religious symbols in public schools and "to safeguard the neutrality of public education, in the interests of pluralism and freedom of others".

France also argued that the measures were proportionate because they applied only to public schools (whereas students were free to wear religious symbols in other public places or at privately run schools) and because the Code required dialogue with the student to occur before disciplinary measures.

Decision

The Committee ruled that Mr Singh's expulsion from school for wearing the keski was a clear limitation on his right to freedom of religion and, particularly, the right to manifest religion.

Hence, the real question for the Committee was whether the limitation was authorised by article 18, paragraph 3, which provides that "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."

The Committee accepted that the promotion and protection of secularism within the state education sector was a legitimate aim and one which served to protect the rights of others, particularly public order and safety. However, bearing in mind the particular circumstances of this case, the Committee ruled that France's response had been unnecessary and disproportionate, as there was no evidence that Mr Singh's wearing of the keski posed any actual threat to the rights and interests of others, or to public order.

The Committee went on to say:

The Committee is also of the view that the penalty of the pupil's permanent expulsion from the public school as disproportionate and led to serious effects on the education to which the author, like any person of his age, was entitled in the State party. The Committee is not convinced that expulsion was necessary and that the dialogues between the school authorities and the author truly took into consideration his particular interests and circumstances.  Moreover, the State party imposed this harmful sanction on the author, not because his personal conduct created any concrete risk, but solely because of his inclusion in a broad category of persons defined by their religious conduct.

Having found a breach of the right to freedom of religion, the Committee did not consider whether the conduct also breached the rights to equality and non-discrimination. The claim under the right to privacy was also ruled-out on the grounds of inadmissibility, as it had not been raised in earlier proceedings before domestic courts.

Relevance to the Victorian Charter

Section 14 of the Victorian Charter also protects freedom of religion, including "the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private."

In certain circumstances, that right may be limited in accordance with section 7 of the Charter.

Nonetheless, this case highlights the need to consider human rights limitations on a case-by-case basis and avoid blanket limitations on human rights which do not take individual differences into account.

The decision is available online at: http://tb.ohchr.org/default.aspx?country=fr

Emma Purdue is a lawyer at Lander & Rogers.