Religion has always been an indispensable part of our lives. Man is incurably religious, Indians more so.
The order of the Supreme Court upholding the sacking of a Muslim air force officer in 2008 doesn’t come as a surprise. The 2003 policy of the Indian Air Force clearly specifies that only those Muslim personnel who had kept a beard along with moustache at the time of commissioning prior to January 1, 2002, would be permitted to keep a beard. Thus if one wasn’t religious in 2002, he cannot now start following practices of his religion. This is a strange logic.
On expected lines, the bench led by Chief justice TS Thakur held that the regulation in question doesn’t interfere with the essential Islamic practices and merely ensures discipline. The apex court, thus has invoked the doctrine of ‘essentiality’ under freedom of religion.
The court has taken upon itself the responsibility of determining what the essential/ non-essential practices of a religion are. This obscure exercise draws the court into an area which is arguably beyond its competence. It gives power to judges to decide on matters of religion. In a way, the court takes over the role of clergy. The court said that ‘essentiality’ would be decided as per scriptures and religious texts of the religion concerned. In fact, over the years, the judiciary has been consistently inconsistent on this issue. In some cases, it has relied on religious texts, in other cases on the empirical behaviour of followers and in some other cases, examined whether the practice existed when the religion originated.
In a similar case in Kerala High Court, a Muslim officer had challenged a police regulation that didn’t permit him to grow a beard. The court, instead of looking at sources of Islamic law such as the Sunna of the Prophet on the essentiality of beard in Islam, based its opinion – in rejecting the petition – by relying on the irrelevant fact that certain Muslim dignitaries don’t sport a beard and that the petitioner himself had not sported a beard in previous years.
The ‘essentiality test’ reached absurd levels in the case involving Ismail Faruqui where the apex court opined that a mosque wasn’t essential to Islam.
The freedom of religion, as enshrined in our Constitution, was meant to guarantee freedom to practice one’s own beliefs based on the concept of “inward association” of man with God. In the Rati Lal Panachand Gandhi case, the Supreme Court has itself acknowledged as much by noting that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”. The framers of the constitution wanted to give this autonomy to each individual. The ‘essentiality test’ does impinge on this autonomy. If religious reform is the purpose, regulatory powers of the state under Article 25(2) should be used instead.
Faizan Mustafa is vice chancellor, NALSAR University of Law, Hyderabad