Practising Sikhs are at risk of being unlawfully banned from entering courthouses or tribunals in England and Wales under current guidelines, according to a case being heard on Thursday by the lord chief justice and the vice-president of the court of appeal.
In a hearing that experts say is of national importance, lawyers for Jaskeerat Singh Gulshan are challenging the security policy of the courts and tribunals concerning kirpans, the ceremonial blade that practising Sikhs must have on their person at all times.
Gulshan, a British-Sikh lawyer and co-founder of the Sikh Lawyers’ Association, was prevented from entering a magistrates’ building in Ealing, west London, last year until he had removed his kirpan.
Under the current court security policy, Sikhs are allowed to bring a kirpan into a court or tribunal building if the overall length is no more than 6in (15.2cm) and the blade is no more than 5in in length (12.7cm).
Gulshan, however, states that it would be impossible to comply with the requirements of his faith with a 5in blade, because the 1in handle would be impossible to hold.
When Gulshan attempted to enter Ealing magistrates court in April 2021, he was denied entrance because his kirpan was 8in in overall length, even though the length of the blade was 4in.
The refusal to let him enter the court with his kirpan, he argued, infringed both primary legislation, which allows the public to carry kirpans of any length for religious reasons in public, as well as the separate right for people to manifest their religion under the Human Rights Act.
“In light of the HMCTS [HM Courts and Tribunals Service] guidance as it currently stands, it is apparent that a Sikh lawyer … cannot expect to practice law because he has effectively been banned from appearing in court in violation of his right to carry a kirpan as protected by UK legislation,” Gulshan’s barrister, Parminder Saini, told the lord chief justice, Lord Burnett and the vice-president of the court of appeal, Lord Justice Underhill.
“Sikhs are unique in being a protected religion as well as a race. As a person of Sikh ethnicity, this systemic discriminatory treatment therefore occurs on both religious and ethnic grounds, and equates to systematic discrimination against Sikhs,” he added.
In their skeleton argument, on behalf of the lord chancellor, the government claimed the security policy was introduced following consultation with the Sikh community. But Saini argued that instead of consulting with the Sikh Council UK, the largest representative platform for Sikhs in the UK, the government spoke with the smaller Supreme Sikh Council.
In his submission to the court, Sukhjeevan Singh from the Sikh Council UK, said: “We are extremely disappointed that HMCTS has published a policy without seeking guidance or recommendation from us and without any proper consultation with the community.”
Singh said the Sikh Council UK “condemns” the courts policy on kirpans. “To design and manufacture such a kirpan would be a mockery of our sacred article of faith,” he said.
Saini is arguing that the court’s guidance is unlawful because it seeks to overrule primary legislation: it is not an offence to carry an article with a blade in a public place if a person has the article with him for religious reasons.
The court’s guidance “unequivocally contravenes” the Human Rights Act 1998 and the European convention on human rights protecting Gulshan’s right to manifest his religious belief, Saini added.
“By prohibiting the length of a kirpan that can be carried the guidance also impermissibly seeks to treat the kirpan as a bladed article, contrary to its designation under primary legislation and its categorisation as an article of the Sikh religion and race. The importance of this distinction should not be taken lightly,” he said.
In their submission, the government argued that permission to appeal should be refused because the policy falls under the legitimate aim of protecting the security of others. Saini’s objections, they said, are “a misreading of primary legislation”.
In his judgment on 10 March, Mr Justice Cavanagh refused Gulshan permission to apply for judicial review because the “HMCTS security guidance is not concerned with the scope of the criminal law but with the circumstances in which persons should be refused entry to court buildings.
“There is no exception in these statutory provisions for kirpans or articles that are carried for religious purposes,” he said.
