Should Only Indian Muslims Bear the Burden of Skewed Ideas of Secularism?

Is India's idea of a Muslim, or perhaps a “good” Indian Muslim, one who does not practice his or her faith?

(Illustration: Arnica Kala/The Quint)

My grandfather was a government employee and so was my father. I remember their cautious conversations on how keeping a beard can be detrimental to their respective services. “First Muslim and then Middle-class, we cannot be rebels”, they said. Years later, when I decided to cover my hair, I realised how nothing has changed.

In 2002, an eleven judges bench of the Apex court speaking of diversity of India, said, “even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost.”

The framers of the Constitution, naturally, were not aloof of this lived reality and acknowledged this diversity in several of its provisions.

Having said this, the effect on ground is different. In West Bengal, some days back, applications of over 1,000 Muslim women were rejected by the West Bengal Police Recruitment Board (WBPRB) because they were seen wearing headscarves (hijabs) in the photos that they had attached with their forms.

From NEET, NET to Judicial Services examinations, Muslim women are often forced to compromise with their faith. Muslim men, on the other hand, are forced to shave off their beards.

Place of Hijab in Islam

From ghunghat, turbans to headscarves in Abrahamic faiths—covering head is not an alien practice. In Islam, head covering for women has religious backing. Even the two major sects of Sunnis and Shias stand together on the mandate of hijab (a term generally denoting headscarf).

In more than 1400 years of Islam, no major sect has ever emerged deviating on the mandate of hijab. Naturally, many Muslim women globally don hijab irrespective of cultural and political differences. Hijab has been an integral part of the Islamic faith and the Muslim community.

In 2015, a Notification of CBSE mandated dress code of the AIPMT exam. The dress code prohibited long sleeves and head covering. The matter reached before the High Court of Kerala which allowed head covering and full sleeves to the Petitioners, two young Muslim women, subject to frisking by women invigilators. The Court observed that “it was not proper for any authority to deny a woman the right to wear her religious attire”.

Judiciary's Response to Hijab-related Requests

In hope of a similar pan-India relaxation, three Muslim women approached the Supreme Court (2015). However, the Apex Court declined the request stating “We will not interfere with these kind of small issue”. Upon the submission of the counsel for the petitioner that “Wearing head scarf is an essential religious practice. The girls will be forced to abandon the examination,” the Bench comprising the then CJI HL Dattu, Arun Mishra and Amitava Roy, JJ. reportedly replied, “Oh, come on! Please. On a day when you have to sit for an exam, you are being asked not to wear it. Your faith won’t disappear if you appear for the exam without a scarf.”

The Bench added “Faith is something different from wearing some kind of cloth”. The petition was naturally withdrawn.

This was not an isolated request. Muslim women, time and again, have approached courts with similar requests. In Amnah Bint Basheer (2016), the Court allowed all candidates who based on their religious practice wanted to wear headscarves and full length dress in AIPMT 2016. The Court noted that “practical difficulty cannot be an excuse to honour the fundamental rights”.

In Fida Fathima (2017), many young Muslim women were allowed by the Kerala High Court to wear headscarves in the AIIMS MBBS 2017 Examination by virtue of Article 25 (1) subject to frisking by women invigilators.

Evidently, High Courts, on several instances, have protected the rights of Muslim women to dress in accordance with their religious beliefs. Having said this, the question remains, should minorities, especially a minority which is educationally and structurally most backward in India (the Sachchar Committee's report demonstrates it), be expected to approach courts for an essential practice of their religion?

Let's Talk About Beards...and President of Pakistan 

What image comes in your mind when I write the words ‘Muslim man’? Is it a kurta pajama clad Muslim with beard or the President of Pakistan? Our judiciary thinks it’s the President of Pakistan. Kerala High Court (Mohammed Fasi case, 1985) cited this argument of the State that since President of Pakistan (Zia ul Haq then), President, Vice President, Judges of SC and HC and Ministers do not wear beards, the practice is not in vogue.

In 2009, when a young Muslim student approached the Apex court to protect his choice to keep a beard, the then judge, Markanday Katju, J. said "We don't want to have Taliban in the country. Tomorrow a girl student may come and say that she wants to wear a burqa. Can we allow it?" while rejecting the plea. Later, Katju apologised and the order was withdrawn.

Muslim Men, Beards, And Military

In Zubair Corporal (2016), the issue was a Muslim man’s right to sport and maintain a beard in armed forces. Regulation 425 of the Armed Force Regulations, 1964 mandates clean shave only allowing whiskers and moustaches in moderate length subject to the exception of a personnel whose religion prohibits the shaving of hair.

Subsequent clarifications allowed maintaining of beard to only those Muslim personnel who had beard alongwith moustache at the time of entry in service prior to a particular period. In 2003, another clarification allowed only those Non-Sikh personnel to sport a beard who had taken permission from their superiors and their beard is alongwith moustaches and also “as part of their religious practice”.

With this background, one Zubair approached the Apex court to be allowed to sport a beard in accordance with his faith. A three-judge bench comprising Chief Justice TS Thakur, Justice DY Chandrachud and Justice Justice L Nageswara Rao dismissing the appeal concluded that no material was produced 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 Court further observed 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. Interestingly, these very objects, particularly the question of uniformity, in the case of Sikh personnel, has been relaxed. And yes, the funny stuff, the judgment states how “for the effective thorough functioning of a large combat force, the members of the Force must bond together by a sense of esprit de corps, without distinctions of caste, creed, colour or religion”.

My Lord, our army regiments are classified on the lines of caste, religion and ethnicities. Our army recognises caste, religions and ethnicities during recruitment. “Martial classes” of Sikhs, Dogras, Rajputs and Jats still dominate the Indian military. Of course, Pathans do not make it to the list of “martial class”.

Zubair’s case again was not an isolated incident. Time and again, Muslim men have approached courts on this very issue of maintaining beard in consonance with their religious beliefs. Last year, a Muslim cop in UP was reinstated after shaving off his beard that caused his suspension.

Recently, a plea by a constable with UP Police, Mohd Farman, for maintaining his beard was rejected by the Allahabad High Court observing that “having a beard by a member of disciplined force may not be protected under Article 25 of the Constitution of India”.

What Happens in the US in Similar Cases

In 2015, the US Supreme Court, ruled in favour of a Muslim woman who was refused a job on account of her wearing a headscarf. Justice Scalia delivering the opinion of the Court noted that, “Samantha Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf.”

Again in 2015, a US Court allowed one Iknoor Singh, an “observant Sikh” in the US, to keep his beard and turban rejecting the US Army’s objections on the ground of his religious practices not conforming to the US Army uniform.

In the Swamiar case (1954), a seven judges bench of the Supreme Court held that “a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interefere with their decision in such matters”.

Is Islam Not Indian Enough?

We feel a sense of euphoria, as a nation, when we see our Sikh brethren wearing turban in the UK and the US. These countries have accommodated an alien faith, as any civilized country would. But our country, even after having one of the largest Muslim population in the world still finds it uncomfortable to accommodate the Islamic faith.

Sikhs in India have been granted exemptions. Sikhs are allowed to wear turbans and keep beards in the armed forces. Article 25 grants exemption to followers of Sikh religion for wearing and carrying Kirpan.

However, no accommodation, rather contempt is seen towards Muslims. Is our country’s idea of a Muslim, or perhaps a “good” Indian Muslim, one who does not practice his or her faith?

Or the whole issue boils down to Islam not being Indian enough at the very first place? In a country where judges proudly discuss their faith and devotion to particular deities, official functions are ornamented with religious offerings, should the burden of a misconstrued idea of secularism be left for only Muslims to bear?

(The author is an advocate. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)