Thursday, December 15, 2016

Supreme Court of India upholds Air Force's no-beards rule

The Indian Express reports here that the Supreme Court of India has rejected a challenge by a Muslim member of the Air Force who was discharged for having a beard. Excerpt:
A bench led by Chief Justice of India T S Thakur added that regulations do not interfere with religious rights of individuals and that they have the sanctity of ensuring discipline. 
Discharged from service, petitioner Ansari Aftab Ahmed had asserted sporting beard as a facet of his fundamental right to freedom of religion, and seek equality with Sikhs, who are allowed to sport unshorn hair and turban. Advocate Irshad Hanif urged the court to fix a date of final hearing on a batch of petitions filed by the Muslim personnel, who had either been thrown out of service or faced disciplinary action for sporting beards.
The December 15, 2016 decision in Zubair v. Union of India, Civil App. No. 8643 of 2009, can be found here. Excerpt:
India is a secular nation in which every religion must be treated with equality. In the context of the Armed Forces, which comprise of men and women following a multitude of faiths the needs of secular India are accommodated by recognising right of worship and by respecting religious beliefs. Yet in a constitutional sense it cannot be overlooked that the overarching necessity of a Force which has been raised to protect the nation is to maintain discipline.
*   *   *
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". The policy letters which have been issued by the Air Headquarters from time to time do not override the provisions of Regulation 425(b) which have a statutory character. The policy circulars are only clarificatory or supplementary in nature. The policy letter of 8 May 1980 did initially permit an airman professing Islam to sport a beard of a prescribed length. This was revisited by the Air Headquarters on 10 August 1982 and a distinction was made between the cases of Muslim personnel who had already sported a beard at the time of joining service (in whose case no permission was required) and cases where personnel desire to sport a beard after joining service (in which case a formal application informing the Commanding Officer was required to be submitted). On 6 October 1999 the Air Headquarters while reiterating this distinction made it clear that if an airman seeks to grow a beard after joining service he would require the approval of the Commanding Officer who would ascertain the reasons for his decision, advice the individual to maintain the beard in a neat, trim and tidy manner and that once permitted he would not be allowed to shave off his beard. Evidently, these provisions have been introduced having due regard to the security concerns inherent in maintaining identity in the Armed Forces. Maintenance of identity is a crucial element in the safety and security of the Forces, particularly in the context of the threat of infiltration. The policy was again revisited on 24 February 2003. This time a limited protection was granted for those who had a beard prior to 1 January 2002 at the time of enrolment but the policy also stated that no person would after joining service be allowed to maintain a beard. This position was clarified on 9 June 2003 by stating that personnel whose religion demands sporting a beard, would be allowed to do so provided they were granted permission prior to the date of the letter or had grown a beard at the time of joining Air Force. So long as the provisions of Regulation 425 (which have a statutory effect) are not breached, a mere policy can be revisited and modulated in the interest of the Force. The policy documents are only clarificatory in nature. Policies can be duly modified to subserve the best interest of the Force, which is inextricably intertwined with the need to protect the nation against grave threats of destabilisation and disorder. The discipline of this Force is paramount.
Compare Goldman v. Weinberger, 475 U.S. 503 (1986).

The Editor will hazard a guess that this decision is going to prove extremely controversial.

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