Much ado about beards: How not to read Supreme Court's judgement on Muslim servicemen

There has been a bit of a buzz about the Supreme Court judgement in the case of Mohammed Zubair and Aftab Ahmad, servicemen in the Indian Air Force who were discharged from service for sporting beards.

Three things need to be clarified:

First, they sported the beards in breach of Air Force Regulations.

Second, there’s no wholesale bar on Muslims having a beard for religious reasons even under the Regulations.

Third, they were unable to substantiate the claim that the beards were being sported for religious reasons.

The apex court confirmed the judgement of both the Single Judge and the Division Bench of the High Court, which had agreed with the Air Force. However, many of the headlines that came up after the Supreme Court judgement on Thursday appear to have been read as suggesting that the Supreme Court had somehow outlawed Muslim servicemen from wearing beards.

Going by social media reaction, this seems to have resulted in either rage-clicks from those who thought it was a bad thing or gloat-clicks from those who thought it was a good thing.

Prosaic judgement

The actual judgement is far more prosaic.

Zubair, for instance, had been asked by his superior officers to shave off his beard as it was not in compliance with Regulation 425 which governs facial hair among Air Force personnel. He challenged this direction in court and lost. Subsequently, when he didn’t comply, he was discharged from service in accordance with the relevant rules.

Interestingly, this case didn’t decide the validity of his discharge from the Air Force since, oddly he doesn’t seem to have challenged it.

The Court has concerned itself therefore only with the issue of whether he could be lawfully directed by the Air Force to remove his beard in accordance with Regulation 425. In specific, paragraph (b) of Regulation 425 which allows personnel to maintain beards for religious reasons, subject to certain requirements. The Air Force had come out with certain policies implementing this rule and Zubair was found to be in contravention of this rule. He didn’t challenge this rule or any of the policies implementing it as being illegal or unconstitutional.

The Supreme Court’s reasoning is careful. In these days when judges have had the reckless tendency to veer off into tangents in judgements, spouting their own views on matters unrelated, Justice DY Chandrachud sticks to the straight and narrow, laying down the law with clarity and thought.

At times, the recitation of the history of the regulation of beards in the Air Force, the way servicemen may apply to keep one, and the relevant regulations have a Catch-22-like dark humour about them. It seems somewhat odd that in the age of biometric identity, the primary reason given for regulating facial hair seems to be the need to easily recognise and establish the identity of the serviceman, apart from the the need to maintain “uniformity of personal appearance” in the forces.

What not to read into it

Too much should not be read into the wider impact of this judgement. Servicemen do not enjoy all the protections of Part III of the Constitution to the same extent as everyone else. Article 33 of the Constitution states that the rights they enjoy are only those that are granted by law made by Parliament and not those granted by the Constitution. In some cases, servicepersons enjoy the same rights as everyone else (such as the right to approach the constitutional courts for rights violations), but their rights, while in service are restricted.

Justice DY Chandrachud’s sedate and sober judgement stands in stark contrast to Justice Katju’s brimstone and bluster in the context of another similar issue involving the maintenance of beards, this time in educational institutions. Even keeping in mind that Justice Chandrachud wrote a detailed judgement and Katju just said things in court, it’s a reminder that moderation is sometimes undervalued in a judge.

The issue of public displays of religious symbols and religious practice is a thorny issue that doesn’t always have cut and dried answers. It is a matter of trying to balance the individual’s right to practice religion in the ways they deem fit, with larger concerns such as public security, health and morality. The balancing act is difficult and it is bound to cause some resentment. Should firecrackers be banned or merely regulated on health grounds? Likewise, jallikattu? And what about slaughter of animals for ritual purposes?

In recent times, these issues have gained a perverse competitive communal edge. “If ‘they’ can be allowed to do their thing, why can’t ‘we’?” It is stoked for obvious political gain on all sides. It is also the wrong approach to resolving these issues. Whether firecrackers should be banned as a public health measure has nothing to do with whether some other practice is allowed or banned for another reason. It’s hard enough weighing the competing interests of religion and public health, without competitive communalism being brought into the mix.

The court’s task in Zubair’s and Aftab’s cases was rather straightforward – were they permitted to keep a beard under the regulations or not? The regulations themselves were not challenged as violating the constitution. As such, this judgement, while correct in its reasoning and ultimate finding, is unlikely to help answer larger questions on religion in the public space, and how to regulate it.

Alok Prasanna Kumar is an advocate based in Bengaluru and was a Senior Resident Fellow of the Vidhi Centre for Legal Policy. Views expressed here are purely personal and not a reflection of any other organisation’s views.