Mandla (Sewa Singh) v Dowell Lee
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE OLIVER,LORD JUSTICE KERR |
| Judgment Date | 29 July 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0729-3 |
| Docket Number | 82/0371 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 1982 |
and
and
[1982] EWCA Civ J0729-3
The Master of the Rolls
(Lord Denning)
Lord Justice Oliver
and
Lord Justice Kerr
82/0371
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE GOSLING)
Royal Courts of Justice.
MR. ALEXANDER IRVINE, Q.C. and MR. MARJIT SINGH (instructed by Messrs. Bindman & Partners) appeared on behalf of the Appellants.
THE RESPONDENT (First Defendant) appeared in person.
How far can Sikhs in England insist on wearing their turbans? A turban is their distinctive headgear. They do not cut their hair but plait it under their turbans. Some of them feel so strongly about it that, when they are motor cyclists, they do not wear crash helmets: and when they are barristers they do not wear wigs.
Sewa Singh Mandla is a Sikh and rightly proud of it. He is a Solicitor of the Supreme Court, practising in Birmingham. In 1978 he applied to send his son Gurinder to a private school in Birmingham called the Park Grove School. Gurinder was then aged 13. The school was very suitable for him. It had a high reputation. It took boys of all races. There were 305 boys altogether. Over 200 were English, but there were many others. Five were Sikhs, 34 Hindus, 16 Persians, 6 Negroes, 7 Chinese and about 15 from European countries.
Mr. Mandla took his son to see the headmaster. Both he and his son were wearing their turbans. The headmaster felt that it might give rise to difficulties if Gurinder wore his turban in school. He asked the father:
"Will you consent to his removing his turban and cutting his hair?"
The father said:
"No. That is completely out of the question".
The headmaster said that he would think about it. Then on the 24th July, 1978 he wrote:
"Thank you for bringing Gurinder to see me. As I promised, I have given much thought to the problem and I have reluctantly come to the conclusion that on balance it would be unwise to relax the School Rules with regard to uniform at the moment. I do not see any way in which it would be possible to reconcile the two conflicting requirements.
"May I wish you well in your efforts to promote harmony and peace, and I hope you find a suitable school for Gurinder without difficulty".
Mr. Mandla did find another school for Gurinder where he is allowed to wear his turban. So all is now well with them. But Mr. Mandla reported the headmaster to the Commission for Racial Equality. They took the matter up with the headmaster. On the 19th September, 1978 he wrote this letter:
"To make my position quite clear, G.S. Mandla was not rejected because he was a Sikh since we do not make racial distinctions and we have several Sikhs in the School. It was the turban that was rejected, and I believe your Acts cover people, not clothes".
The Commission, however, did not let the matter rest. They pursued the headmaster relentlessly. They interviewed him. They demanded information from him. Eventually they decided to assist Mr. Mandla in legal proceedings against him. With their assistance in money and advice Mr. Mandla issued proceedings against the headmaster of the school in the Birmingham County Court. He claimed damages limited to £500 and a declaration that the defendants had committed an act of unlawful discrimination. The county court judge heard the case for five days in February and June 1980, with many witnesses and much argument. The judge dismissed the claim.
The Commission for Racial Equality—in Mr. Mandla's name—appeal to this court.
The headmaster appeared before us in person. He has not the means to instruct counsel and solicitors. He put his case moderately and with restraint. He has himself done much research in the India Office Library and elsewhere. It must have taken him many hours and many days. Now we have to consider what it all comes to.
The law
The case raises this point of great interest: What is a "racial group" within the Race Relations Act 1976? If the Sikhs are a "racial group" no one is allowed to discriminate against any of their members in the important fields of education and employment and so forth. No matter whether the discrimination is direct or indirect, it is unlawful. But, if they are not a "racial group" discrimination is perfectly lawful. So everything depends on whether they are a "racial group" or not.
The statute in section 3(1) contains a definition of a "racial group". It means a "group of persons defined by reference to colour, race, nationality or ethnic or national origins". That definition is very carefully framed. Most interesting is that it does not include religion or politics or culture. You can discriminate for or against Roman Catholics as much as you like without being in breach of the law. You can discriminate for or against Communists as much as you please, without being in breach of the law. You can discriminate for or against the "hippies" as much as you like, without being in breach of the law. But you must not discriminate against a man because of his colour or of his race or of his nationality, or of "his ethnic or national origins". It is not suggested that the Sikhs are a group defined by reference to colour or race or nationality. Nor was much stress laid on national origins. But it is said—most persuasively by Mr. Alexander Irvine, Q.C.—that the Sikhs are a group of persons "defined by reference to ethnic origins". It is so important that I will consider each word of that phrase.
"Ethnic"
The word "ethnic" is derived from the Greek word "e?vos" which meant simply "heathen". It was used by the 72 Palestinian Jews who translated the Old Testament from Hebrew into Greek (in the Septuagint). They used it to denote the non-Israelitish nations, that is, the Gentiles TA "e?vos". When the word "ethnic" was first used in England, it was used to denote peoples who were not Christian or Jewish. This was the meaning attached to it in the great Oxford English Dictionary itself in 1890.
But in 1934 in the Concise Oxford Dictionary it was given an entirely different meaning. It was given as:
"pertaining to race, ethnological".
And "ethnological" was given as meaning:
"corresponding to a division of races".
That is the meaning which I—acquiring my vocabulary in 1934—have always myself attached to the word "ethnic". It is, to my mind, the correct meaning. It means "pertaining to race".
But then in 1972 there was appended a second supplement of the Oxford English Dictionary. It gives a very much wider meaning than that which I am used to. It was relied upon by Mr. Alexander Irvine:
"Also, pertaining to or having common racial, cultural, religious or linguistic characteristics, especially designating a racial or other group within a larger system; hence (U.S. colloquial), foreign, exotic".
As an example of this new meaning, the second supplement refers to a book by Huxley & Haddon called We Europeans. It mentions "the non-committal term ethnic group" and refers to the "special type of ethnic grouping of which the Jews form the best-known example". This reference to the Jews gives a clue to the meaning of ethnic.
Why are "the Jews" given as the best-known example of "ethnic grouping"? What is their special characteristic which distinguishes them from non-Jews? To my mind it is a racial characteristic. The Shorter Oxford Dictionary describes a Jew as "a person of Hebrew race". Some help too can be found in our law books, especially from the cases of Clayton v. Ramsden (1942) Chancery 1 and (1943) Appeal Cases 320 and Re Tuck's Settlement Trust (1978) Chancery 49. If a man desires that his daughter should only marry "a Jew" and cuts her out of his will if she should marry a man who is not "a Jew", he will find that the court will hold the condition void for uncertainty. The reason is because "a Jew" may mean a dozen different things. It may mean a man of the Jewish faith. Even if he was a convert from Christianity, he would be of the Jewish faith. Or it may mean a man of Jewish parentage, even though he may be a convert to Christianity. It may suffice if his grandfather was a Jew and his grandmother was not. The Jewish blood may have become very thin by inter-marriage with Christians, but still many would call him "a Jew". All this leads me to think that, when it is said of the Jews that they are an "ethnic group", it means that the group as a whole share a common characteristic which is a racial characteristic. It is that they are descended, however remotely, from a Jewish ancestor. When we spoke of the "Jewish regiments" which were formed and fought so well during the war, we had in mind those who were of Jewish descent or parentage. When Hitler and the Nazis so fiendishly exterminated "the Jews", it was because of their racial characteristics and not because of their religion.
There is nothing in their culture or language or literature to mark out Jews in England from others. The Jews in England share all of these characteristics equally with the rest of us. Apart from religion, the one characteristic which is different is a racial characteristic.
"Origins"
The statute uses the word "ethnic" in the context of "origins". This carries the same thought. I turn once again to the Shorter Oxford Dictionary. Where the word "origin" is used of a person it means "descent, parentage". I turn also to the speech of Lord Cross of Chelsea...
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