Sunday, December 25, 2016

The Supreme Court's incorrect ruling on new beards for Muslim men in the Air Force & on how the law could evolve

In its judgment dated 15 December 2016 in Mohammed Zubair's case, the Supreme Court has ruled that the Indian Air Force was justified in disallowing a Muslim man to keep a beard and in discharging him for persisting in keeping a beard without permission. 

Reading news reports on this decision, my first thought was that 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.

However after going through the complete judgment and the reasoning of the court, it is clear that the facts and issues before the court were more complicated and the Supreme Court decision is incorrect. 

Regulation 425 is from 1964. It reads: 
“425. Growth of Hair etc. by Air Force Personnel.
(a) Except as in sub para (b), the hair of the head will be kept neatly cut and trimmed. The hair of airman under detention/sentence will be cut no shorter than is customary/ throughout the service except on medical advice and except where on an application made by the airman he has been permitted to keep long hair. Face will be clean shaven. Whiskers and moustaches, if worn will be moderate length.
(b) Personnel whose religion prohibits the cutting of the hair or shaving of the face of its members will be permitted to grow hair or retain beard. However, such hair and/ or beards will be kept clean, properly dressed and will not be removed except on medical grounds or on application duly approved”.

The Air Force has over the decades clarified on the interpretation and enforcement of this regulation in several communications which the SC erroneously describes as "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 government was in power, the previous policy was revised. 

The new 2003 policy allowed Sikhs to sport beards. Muslim men however 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 enlisted 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. 

Muhammed Zubair joined the Air Force in 2001 without a beard. In 2005, he asked the Air Force for permission to grow a beard on the ground that he was a Muslim. This permission was denied. He refused to shave his beard and was eventually discharged by the Air Force. He was before the Supreme Court challenging this action of the Air Force. 

The Supreme Court does not really 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. 

The Supreme Court's reasoning is weak. It states that the object and purpose of the Air Force regulation "is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the Air Force, as indeed to every armed force of the Union." Therefore according to the Court, the Air Force was justified in preventing Zubair from growing a beard. What the Supreme Court ignores is that until 2003 the Air Force permitted enlisted Muslim men to grow new beards subject to permission, and that even today the Air Force continues to allow a defined category of enlisted Muslim men to sport beards. Therefore the reasoning of the court that those Muslim men who enlisted (without beards) in the Air Force after 2003 cannot grow new beards because this would interfere with the "uniformity, cohesiveness, discipline and order which are indispensable to the Air Force" is faulty. 

In paragraph 10 of the judgment, the Supreme Court appears to suggest that Islam does not mandate a prohibition on the cutting or shaving of facial hair. The court also states that Mohammed Zubair failed to establish his own religious belief that shaving his facial hair was prohibited. While Islam might not mandate beards for men like Sikhism does (see Are beards obligatory for devout Muslim men?
and The relationship between Muslim men and their beards is a tangled one ), Mohammed Zubair did come around to the belief that his religion required him to keep a beard and this belief was certainly important enough for him to enter into prolonged litigation with the Air Force (his employer) and for him to refuse to shave his beard even at the risk and ultimate consequence of discharge from the Air Force. Further as argued above, the Air Force until 2003 itself permitted Muslim men to retain beards and grow new beards and even after 2003 the Air Force continues to permit Muslim men to retain old beards, on the basis that these beards were/are part of religious beliefs. And therefore the issue before the court was also one of arbitrary discrimination between and unequal treatment of two separate classes of Muslim men enlisted in the Air Force, which issue the Court failed to note and address. 

Finally the discussion in paragraph 10 of the Supreme Court decision in this case is noteworthy because it touches upon the Court's evolving jurisprudence on the 'essential religious practices test' and the issue of community based claims versus individual based claims to religious practices and beliefs. This distinction will be eventually important for how the Supreme Court continues to resolve the issues arising from potential conflicts between two distinct fundamental rights - the fundamental right to practice religion and the fundamental right to manage religious affairs. Until recently, the Supreme Court's jurisprudence on the right to religion centered on community rights. However the distinction between community based claims and individual based claims to religious practices and beliefs has more recently assumed significance before the Supreme Court in litigation where an individual challenges or rejects a community imposed religious practice and seeks to enforce his or her fundamental right to practice religion against the community’s claims to manage religious affairs. The Sabarimala, Haji Ali and triple talaq cases are interesting examples of such conflicts between individuals and their religious communities viewed as a monolith. (In reality, religious communities are also often fragmented into factions on important issues that impact people's rights). Another interesting situation of such conflict 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 or 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 or her religion according to the individual’s own conscience would 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. And with the further caveat (in the context of the Sabarimala and Haji Ali litigation) that women entering public places of worship cannot be viewed as desecrating those places.

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