The Supreme Court’s Muslim Beard Judgment: A Missed Opportunity

Yesterday, a three-judge bench of the Supreme Court upheld a Muslim airman’s discharge from the Indian Air Force for keeping a beard. At issue before the Court was Regulation 425 of the Armed Force Regulations, 1964, which prohibited the growth of hair by Armed Forces personnel, except for “personnel whose religion prohibits the cutting of hair or shaving of face.” (425(b)) Although the Court referred to various policy directives issued by the Air Force from time to time, the case ultimately turned on whether the Airman was covered by Regulation 425(b). The Court held that he was not, although its reasoning on the point was rather brief:

“During the course of the hearing, we had inquired of Shri Salman Khurshid, learned senior counsel appearing on behalf of the Appellants whether there is a specific mandate in Islam which “prohibits the cutting of hair or shaving of facial hair”. Learned senior counsel, in response to the query of the Court, indicated that on this aspect, there are varying interpretations, one of which is that it is desirable to maintain a beard. No material has been produced before this Court to indicate that the Appellant professes a religious belief that would bring him within the ambit of Regulation 425(b) which applies to “personnel whose religion prohibits the cutting off the hair or shaving off the face of its members”.

Since the Court did not go into the question, it remains unclear what manner of evidence would have actually been sufficient to convince it that the airman’s case fell within Regulation 425(b). From the question that the Court put to the airman’s counsel, it appears that it was looking for some kind doctrinal evidence demonstrating that Islam prohibits the cutting of facial hair, regardless of the appellant’s own views on the issue. This is in line with the Court’s “essential religious practices” test, which I have criticised earlier.

However, a distinction needs to be drawn between two kinds of religious claims. Most of the cases that have come before the Court have involved the status of practices that can be broadly understood as group or community practices (for instance, the Supreme Court’s 2004 judgment on whether the public performance of the tandava dance was an essential part of the Ananda Margi sect’s beliefs). Although the essential religious practices test remains deeply problematic, in such cases, it is understandable that the Court might want to look for authoritative sources to ascertain the status of the practice within the religion/sect. However, the present case did not involve determining the status of a community practice – it involved, centrally, an individual’s judgment of what was required by his faith. In such a case, the essential religious practices test seems even less defensible, because effectively, it prohibits any individual departure from the officially sanctioned tenets of the religion. And in such cases, the test that is followed in other jurisdictions, throughout the world – the test that asks merely whether the individual in question had a sincere and genuinely held belief in the validity of the religious claim – seems far more appropriate.

Although the distinction between community-oriented and individual-oriented religious claims has not yet been drawn by the Supreme Court, in my view, a three-judge bench was ideally placed to do it, and to limit the scope of the essential religious practices test. The case, therefore, represents a missed opportunity by the Court to develop its religious freedom jurisprudence in a more progressive direction.

It is also unclear to me why, after having held that Regulation 425(b) was not applicable to the airman’s case, the Court found it necessary to make the following observations:

“The Air Force is a combat force, raised and maintained to secure the nation against hostile forces. The primary aim of maintaining an Air Force is to defend the nation from air operations of nations hostile to India and to advance air operations, should the security needs of the country so require. The Indian Air Force has over eleven thousand officers and one lakh and twenty thousand personnel below officers rank. For the effective and thorough functioning of a large combat force, the members of the Force must bond together by a sense of Espirit-de-corps, without distinctions of caste, creed, colour or religion. There can be no gainsaying the fact that maintaining the unity of the Force is an important facet of instilling a sense of commitment, and dedication amongst the members of the Force. Every member of the Air Force while on duty is required to wear the uniform and not display any sign or object which distinguishes one from another. Uniformity of personal appearance is quintessential to a cohesive, disciplined and coordinated functioning of an Armed Force.”

This was unnecessary, because the argument from uniformity/cohesiveness would arise only if the Court had first found that the airman had a right to keep a beard, and was then assessing whether the Air Force was justified in curtailing the right. As the Court correctly pointed out, Article 33 of the Constitution expressly permits Parliament to modify the application of fundamental rights to members of the Armed Forces – which it did, for instance, through Regulation 425. Consequently, the Court’s enquiry should have begun and ended with Regulation 425 (where, I have tried to show, it ought to have applied a different test).

Additionally, the questioning of balancing rights, in such cases, is a complex one, and requires a more detailed analysis than what the Court undertook. In some jurisdictions, for instance, a distinction is drawn between ostentatious or very visible religious markers of identity, and more innocuous ones; some jurisdictions require employers to demonstrate that their restrictions serve a “bona fide occupational requirement“, and furthermore, are reasonably tailored towards achieving it. Admittedly, after its finding on Regulation 425(b), the Court did not need to address this question; however, it nevertheless chose to do so, in doing so, its observations about unity and cohesiveness unduly simplify a very complex issue.

Furthermore, during the course of its observations, the Court ended up making a statement that is incorrect as a matter of law, but could have unfortunate consequences going forward. Towards the end of its judgment, the Court remarked that:

“Regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union.”

While it is nobody’s case that the regulations intended to discriminate against religious beliefs, it is incorrect to also state that they do not have that effect. The only basis for that claim would be the assumption that religious dicta and personal appearance are entirely separate from each other; a quick look at the core tenets of Sikhism demonstrates that that assumption is false. Indeed, the Court’s reference to “object and purpose” in the next line was itself a statement about legislative intent; but by running together intent and effect, in my view, the Court conflated direct and indirect discrimination in a manner that could stifle the future development of indirect discrimination jurisprudence in India (a concept still in its infancy).

11 thoughts on “The Supreme Court’s Muslim Beard Judgment: A Missed Opportunity

  1. The analysis was good. I just don’t agree with the criticism where you have said that the court after going into the question of essential practices need not have gone into the objective of the resolution or the purpose of the air forces. Like any other case, there are many arguments from both sides and many issues are considered. These two are independent observations to two different issues.
    Moreover, both would stand independent of each other. If tomorrow, the essential practices test fails, the case would still be an authority on such similar issues wherein a regulation is challenged on such grounds.
    For the rest part, it was a well analysed judgment.

  2. “However, the present case did not involve determining the status of a community practice – it involved, centrally, an individual’s judgment of what was required by his faith.”

    “Individual judgement”. Seems like that would just open a Pandora’s box.

  3. It is a proven fact that keeping a beard does not interfere in the functioning of the armed forces. If keeping a beard is allowed on the ground “only” of religion, why it cannot be allowed on the ground of the community or cultural practices.

  4. Interesting analysis, but I think the Supreme Court reached the correct factual conclusion in this case. Regulation 425 talks about a religion prohibiting the cutting/ shaving of facial hair. Now while Sikhism does prohibit this, Islam does not. The majority of Sikh men retain facial hair while the majority of Muslim men shave it. This is a fact. The fact that this dispute arose in a military context is also important. Joining the military does make military regulations paramount over several individual rights which might not happen in normal civilian life.
    Coming to the essential religious practices test and the issue of community based clams and individual based claims, this is an important distinction that will be eventually important for how the Supreme Court continues to resolve the issues arising from the fundamental right to practice religion and the fundamental right to manage religious affairs. These concepts would be important where an individual challenges/ rejects a community imposed religious practice and seeks to enforce his/her fundamental right to practice religious against the community’s right to manage religious affairs. The Sabarimala, Haji Ali and triple talaq cases are interesting examples of this conflict. As would be the concept of excommunication. Can the concept of excommunication survive if the Court were to uphold an individual’s right to practice his/ her religion according to the individual’s own conscience. This is the direction that progressive thinking might lead to – that an individual’s right to practice his/her religion according to the individual’s own conscience must prevail over community dictated religious practices, with the caveat however that the individual cannot in this freedom claim a right say to desecrate a temple. With the further caveat that women entering public places of worship cannot be viewed as desecrating those places.

  5. I read the judgment. The issue before the court appears to have been more complicated. Regulation 425 is from 1964.
    The Air Force has clarified on the interpretation and enforcement of this regulation in several communications which the SC calls “policy” documents. Thus in 1980, in 1982, and in 1999, the Air Force expressly stated that Regulation 425 applied to Muslims who wanted to sport beards. Muslim men could maintain beards if they had them at the time of enrollment or if they were given express permission after an application to maintain a beard.
    In 2003 when the BJP led NDA was in power, the previous policy was revised.
    The new 2003 policy allowed Sikhs to sport beards. Muslim men could only maintain beards if they had them “at the time of commissioning/ enrolment prior to 01 Jan 2002” The new policy stated “Muslims who have grown beard after joining service should shave off the beard.”
    A clarification was later issued in 2003 stating that Muslim men who had received prior permission could also keep their beards. And Muslim men who had beards at the time of enrollment could also keep these.
    The effect of the policy seems to be that with effect from 9 June 2003, Muslim men cannot ask for or receive permission to grow new beards.
    It is unclear if bearded Muslim men can enlist after this date. I would think they can.
    The Supreme Court does not address the issues that arise from the above. The judgment skirts these issues by saying that regulation 425 prevails over “policy” documents and that the latest policy from 2003 would prevail. The Supreme Court also suggests that the reason for the change in policy in 2003 was to ensure that enlisted men could be identified so as to prevent infiltration.
    What the Supreme Court failed to consider is whether it is unequal and arbitrary to allow some Muslim air force personnel to sport beards on religious grounds while denying other Muslim air force personnel the right to do the same.
    The issue of the need to identify air force personnel can be addressed in other ways as the judgment itself notes and that alone cannot justify this arbitrariness.

    And coming to the sentence that Gautam Bhatia singles out: “Regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have the effect of doing so.” The Supreme court appears to be referring specifically to the 1964 regulation 425 though in the very next sentence the Court opens this up by referring to more broadly “every armed force of the Union”.

    The next sentence is also a weak spot in the reasoning of the Court. It states: “Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union.”

    Now the very fact that the air-force permitted Muslim Men before 2003 to decide to sport new beards subject to permission, and that the air-force continues to allow some Muslim men to sport beards even today, the reasoning of the court that other Muslim men cannot sport new beards because this would interfere with the “uniformity, cohesiveness, discipline and order which are indispensable to the Air Force” is faulty.

    So after reading the complete judgment, I revise my earlier opinion that the matter has been correctly decided. The decision appears to be wrong.

  6. The primary aim of air force is to maintain or defend the nation from air operations of nations hostile to India. As you told, there are over eleven thousand officers and one lakh and twenty thousand people in Indian Air Force all are maintain the same rules.Any type of communal think should destroy the unity.

  7. Hi Gautam, regarding your excellent article on religious freedom in Global Constitutionalism, I plan to read it closely, but after skimming over it, I would go further than you do and claim that the “anti-exclusion principle” that you propose would extend to exclusion from religion or religious communities as well and not just basic public goods. And this would derive from the guaranteed right of individuals to “freedom of conscience and the right freely to profess, practise and propagate religion” under Article 25(1). I would argue that the rights of religious communities under Article 26 are subordinate to the rights of individuals to freedom of religion under Article 25.
    More after I read your article fully.

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