India’s Troubling Jurisprudence to Control and Regulate Private and Religious Sphere

Ashwani Kumar Singh

Gujarat National Law University

Article 25 of the Constitution of India, titled ‘freedom of conscience and free profession, practice and propagation of religion’, provides religious freedom to individuals while also empowering the State to regulate or restrict ‘any economic, financial, political or other secular activity which may be associated with religious practice’. On Aug 12 2021, a bench of the Allahabad High Court, in Mohd Farman v. State of UP, ruled that – for a member of a disciplined force, having/growing beard will not fall within the protection of Article 25 of the Constitution of India. The petitioner, Mohd Farman, had refused to shave his beard despite specific direction issued by the Director General of Police (Uttar Pradesh), contending that he was maintaining beard in accordance to his religious belief and thus, it should be protected under Article 25. 

The High Court also held that the direction issued by the Director General was not affected by Article 25 because rights conferred under Article 25 have ‘inbuilt restrictions’, thereby referring to the powers of State to intervene in certain religious matters. The High Court relied on the Supreme Court judgment in Mohd Zubair Corporal v. Union of India where the Supreme Court had refused to allow air force personnel to maintain a beard as the court found that it did not form an ‘essential part of his religion’ (Islam). Even though Regulation 425(b) of the Air Force Regulations allows air force personnel to ‘grow hair or retain beard’ provided their religion prohibits the cutting of hair or shaving of beard, the Supreme Court (in Mohd Zubair) observed that this regulation will be extended to personnel only when maintaining a beard forms an essential practice of their religion, i.e. when there is a very specific mandate that demands maintaining of beard or prohibits the cutting of hair.

These two judgments are pushing towards a jurisprudence where non-essential practices do not enjoy constitutional protections under Article 25, a rather troubling legal position. Though the roots of essential religious practices are traced back to constituent assembly debates, the Constitution of India does not expressly differentiate between essential and non-essential practices. It merely provides the State to regulate or restrict ‘any economic, financial, political or other secular activity which may be associated with religious practice’. This clause along with the constituent assembly debates paved the way for the composition of the essential religious practice test. 

The purpose for distinguishing essential practices from non-essential is for the State to regulate secular activities that do not form an essential part of a religion. Though the Court in Shirur Mutt indicated that ‘what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself’, the Supreme Court has, on numerous occasions, interfered to determine essentiality, thereby deviating from its earlier stand in 1954 where it had observed that ‘no outside authority has any right to say that these are not essential parts of religion’.

While adjudicating such matters, the courts have often left, what they consider, ‘non-essential’ practices devoid of constitutional protection. The impact of this is that the state can control or regulate extremely private and personal religious practices like maintaining beard. The intent of religious freedom to profess a religion of one’s choice is to separate the state from the church. The state does not have the right to probe into the private sphere under the disguise of secular activities. 

In the above-mentioned cases, allowing personnel to maintain beard would not have diminished their abilities in any manner, cutting beard would have also not made them more disciplined or sincere. Thus, it was inessential on the part of the state to compel to abide by the rules and regulations just because the state wanted and not because it ‘needed’ to do so. The courts should thus question the state when it tries to control or regulate an alleged secular activity, to lay down the purpose for controlling or regulating such activities. 

This inquiry would not be a breach of the separation of power and would remain within the boundaries of Article 25 for two reasons – first, the Constitution does not differentiate between essential and non-essential practices, it treats both the categories alike; second, Article 25 does not provide the state to control or regulate all secular activities. The general term – ‘other secular activity’ – in Article 15 is preceded by specific enumeration ‘economic, financial, political’ and therefore, should be read along similar lines. The specific enumerations indicate that the constitution-makers did not intend to interfere with something as personal as growing and maintaining beard. The courts should be more vigilant to prevent the state from intruding into the private sphere of life and thereby, forestalling the gradual erosion of religious freedom.

Ashwani Kumar Singh is an alumnus of the Gujarat National Law University (India) and the founder of a research organisation – Criminal Law Review (CrLR) – based in India.

Suggested Citation: Ashwani Kumar Singh, ‘India’s Troubling Jurisprudence to Control and Regulate Private and Religious Sphere’, IACL-IADC Blog (30 September 2021) https://blog-iacl-aidc.org/2021-posts/2021/9/30/indias-troubling-jurisprudence-to-control-and-regulate-private-and-religious-sphere.