Hardeep Singh libel case reignites debate on place of religion in the English courts

8 June 2010 by

HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group & Anor [2010] EWHC 1294 (QB) (17 May 2010) – Read judgment

The High Court has effectively thrown out a libel action against a journalist who claimed in an article that a Sikh holy man was a “cult leader”. The judge’s reasoning was that the disputed points of religious principle were not questions which a secular court could properly decide. In refusing to rule on such cases, are the courts taking an increasingly anti-religious view, and are they now in breach of the human right to religious freedom?

The decision was reported in mid-May, but Mr Justice Eady’s judgment was made publically available yesterday. It highlights controversial issues of whether religious believes are getting a fair hearing in the English courts, and whether “secular” judges are qualified to decide points of religious principle.

The action was brought by His Holiness Sant Baba Jeet Singh Ji Maharaj (Jeet Singh), who lives in India, in response to an article published by Hardeep Singh, a journalist, in the UK-based Sikh Times. Mr Singh wrote that the “influence of an accused Cult leader called Jeet Singh has disturbed the peace in the Sikh community in High Wycombe, Buckinghamshire”, and that “Cults are by no means a new phenomenon affecting the Sikhs globally and Jeet Singh is one of several high profile accused Cultists who are causing difficulties for the community worldwide.”

Jeet Singh sued in libel in the English courts as the offending article was published here. It is particularly easy to bring such actions in the English courts, whether or not a claimant has any connection with the UK. Mr Singh told the Telegraph that the case had ultimately cost him in excess of £90,000.

No place for religion in the secular courts

Mr Justice Eady, a well known libel judge, effectively threw the action out on the basis of the principle of English law that the courts will not attempt to rule upon doctrinal issues or intervene in the regulation or governance of religious groups. He approved the comment of Mr Justice Munby in Sulaiman v Juffali [2002] 1 FLR 479, that

Religion … is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.

Similarly, the Courts have made clear that they will not “regulate issues as to the procedures adopted by religious bodies or the customs and practices of a particular religious community or questions as to the moral and religious fitness of a person to carry out the spiritual and pastoral duties of his office” (Blake v Associated Newspapers [2003] EWHC 1960 (QB))

Unable to decide the case

Ultimately Mr Justice Eady found that he was simply unable to decide the case. One of the key issues was whether the Claimant was, as Mr Singh had claimed, an “imposter”. The judge held that

… it seems to me plain that the allegation of “impostor” cannot be divorced from questions of Sikh doctrine and practice. Of course, I recognise that if an allegation were made of someone, who happened to be a religious leader, that he had his hand in the till, or assaulted a follower, this could be determined separately and without reference to religious doctrine or status, but that is far from this case. The issue whether this Claimant is or is not fairly described as an “impostor” cannot be isolated and resolved without reference to Sikh doctrines and traditions.

Allergic to religion?

The principles approved by Mr Justice Eady do not mean a court is entirely restricted from deciding a case involving religious principles. Rather, a court should not involve itself in a case where points of religious principle goes to the heart of the matter, for fear, in Mr Justice Munby’s words, of “straying across the well-recognised divide between church and state”.

Of course, it is not always easy to tell whether issues central to a case are “religious” in nature. Strict religious observance tends to spread to almost all aspects of a person’s life, and the dividing line between what is a “religious” issue and what is not is often unclear.

This interpretative problem has led some religious authorities to claim that the courts are behaving unfairly towards religious believers by ruling on cases which, in their eyes at least, revolve around aspects of religious doctrine, without having the necessary expertise to do so.

A notorious recent example was Lord Carey’s intervention in McFarlane v Relate Avon Ltd, an unfair dismissal claim brought by a relationship counselor who as a result of his Christian beliefs refused to promote gay sex. The former Archbishop of Canterbury submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the High Court has now rubbished that suggestion, saying:

Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.

It is not unknown for English courts to utilise subject-matter experts as part of judging panels (for example employment tribunals), but civil courts generally work on the principle that most judges can try most cases, regardless of their particular expertise. That is not to say that judges are allocated cases on a random basis; for example, Mr Justice Eady is often assigned to controversial High Court libel actions. However, this is quite different from requesting that a judge’s social or personal background, as opposed to their legal experience, should be brought to bear on a particular issue.

Rosalind English blogged here on the implications of the McFarlane judgment in light of rights under Article 9 of the European Convention on Human Rights (freedom of religion):

This reflects something of a sea change in the judicial approach to the whole notion of “religious beliefs”. It was not very long ago that courts were enjoined to base their determination on whether a certain position or tenet was a matter of spiritual belief (so as to attract the protection of Article 9) by the degree of sincerity with which it was held…

Now it seems that claims to a supernatural backing for a course of behaviour will not be privileged by the courts, irrespective of the fervour with which the claimant cleaves to that belief. The focus is instead on the merits of the particular position adopted.

Rights to religious freedom

At first sight, it seems perfectly sensible that the English courts stay as far away as possible from deciding points of religious doctrine. Intra-religious disputes can often rumble on for centuries, raising infinitely complex points of principle and observance which are impossible to deal with effectively in the few hours available in a standard English Court case.

This does not necessarily mean that religious believers are left without a remedy in doctrinal disputes; Judaism and Islam, for example, both have fully functioning and effective religious courts which are unafraid of ruling on doctrinal (and, for that matter, non-doctrinal) issues.

The English courts should be even more wary of ruling on inter-religious disputes, the most obvious reason being that the organs of the state should not, and should not be seen to, privilege one religion over another.

However, whilst some issues are straightforwardly “religious” in nature, some are less so, and the courts may sometimes be willing to rule on an issue even if a group effected by the ruling sees it as essentially religious in character. For example, the Supreme Court saw itself as fully capable of ruling that the Jewish Free School admissions policy, which is based on ancient principles of Orthodox Jewish religious doctrine, ran foul of the race discrimination law. This decision has been seen by some in the Jewish community as not just a matter of secular anti-discrimination law, but an attack on their religious freedom.

More to come

It is unlikely that this is the last time that issues of a court’s competence to rule on “religious” issues will arise. The passing of the Human Rights Act has led to courts deciding on an increasing number of social, political and indeed religious issues which would formerly be considered outside of their remit.

It is unsurprising, therefore, that more questions are being asked as to whether our judges are properly qualified to understand and rule on such controversial areas, even to the extent of looking more closely at their religious beliefs; something which is common in relation to the United States Supreme Court but until now has been unusual in the UK. As Aidan O’Neill QC put it in a recent blog post, “There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue. The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.”

This would seem to bolster the argument that judges should continue to, insofar as is possible, stay well away from litigation which centers on points of religious doctrine. Whether this is practically possible, in light of the state’s ever-increasing obligations to protect religious freedom under human rights law, is another question altogether.

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