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Monday, December 19, 2016

MOHAMMED ZUBAIR CORPORAL NO.781467-G Vs. UNION OF INDIA & ORS.

                                                                  REPORTABLE

    IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 8643 OF 2009

MOHAMMED ZUBAIR CORPORAL NO.                       .....APPELLANT
781467-G



                                   Versus



UNION              OF               INDIA               &               ORS.
.....RESPONDENTS


                                    With

                        CIVIL APPEAL No. 8644 OF 2009



                               J U D G M E N T





Dr D Y CHANDRACHUD, J

CIVIL APPEAL No. 8644 OF 2009


      The Appellant was enrolled as an Airman in the Indian Air Force on  19
December 2001.  After enrolment he was sent for training  and  was  assigned
the trade of Workshop Fitter (B).  On 1 September 2004 he was  posted  to  3
Base Repair  Depot  at  Chandigarh.   On  10  January  2005,  the  Appellant
submitted an application seeking permission to keep  a  beard  on  religious
grounds, since he is a Muslim.  The  Air  Officer  Commanding  rejected  the
application on 1 February 2005 and the Appellant was informed on 9  February
2005 of the rejection, which was on the  ground  of  the  Air  Headquarters’
Policy dated 24 February 2003.  On 22 March  2005  the  Appellant  submitted
another application to the Air Officer  Commanding  seeking  reconsideration
of the earlier decision.  He was granted an interview with him  on  10  June
2005, when he was informed of the necessity to maintain  uniformity  amongst
Air Force personnel because of which his request had been rejected. The  Air
Officer Commanding, however, addressed a communication dated  23  June  2005
to the Headquarters Maintenance  Command  seeking  a  clarification  on  the
legal issues raised by the Appellant.  In the meantime on 20 June  2005  the
Appellant proceeded on annual leave.  When he returned on 1 August 2005,  he
was found to sport a beard.  On 1  August  2005  he  was  informed  by  Wing
Commander that contrary to Air Force Regulations, he was  found  to  have  a
beard while in service uniform.   The Appellant was instructed to shave  off
his beard and to report at 0700 hrs on 2 August 2005, failing which  it  was
stated that "severe disciplinary action" would  be  initiated  against  him.
The Appellant declined to shave off his beard.   Since  in  the  meantime  a
clarification had been sought from HQ -MC, he was permitted to grow a  beard
on a provisional basis until his earlier application was  finalised.   By  a
communication dated 26 August 2005 HQ-MC Nagpur, informed  3  BRD,  AF  that
under the current policy of the Air Force (Area HQ/C 23406/24/PS)  dated  24
February 2003 and 9 July 2003 an Airman was not permitted to  have  a  beard
on religious  grounds.   On  receipt  of  this  letter,  the  Appellant  was
directed  to  shave  off  his  beard  and  informed  that  the   provisional
permission granted to him on 3 August 2005 was withdrawn.

2     On 17 September 2005 the Appellant filed a writ  petition  before  the
Punjab & Haryana High Court in which by an interim order dated 20  September
2005 a Single Judge stayed the operation of the  Air  Force  order  dated  5
September 2005.   The  Air  force  authorities  moved  the  High  Court  for
vacating the interim stay but the application was dismissed  on  9  February
2006.  A Special Leave Petition  was  filed  before  this  Court  which  was
disposed of on 28 September 2007  with  a  request  to  the  High  Court  to
dispose of the petition expeditiously.  By an order of the High Court  dated
14 July 2008 the writ petition was dismissed.  A Letters Patent  Appeal  was
dismissed by the High Court on 31 July 2008.  In the meantime, a  notice  to
show cause was issued to the Appellant calling upon him  to  explain  as  to
why he should not be discharged from service.  In reply to the  notice,  the
Appellant  asserted  his  right  to  retain  a  beard.   The  Appellant  was
eventually discharged from service under Rule 15(2)(g)(ii) of the Air  Force
Rules 1969 on 1 September 1997.

3     In the writ proceedings before the High Court, which  were  instituted
on 17 September 2005 the Appellant sought the following reliefs :

“a writ of Certiorari or any other appropriate writ, order or direction  for
quashing of Annexure P-5 vide  which  the  petitioner,  a  Muslim  has  been
directed to shave his beard by 20.092005,  the  same  (Annexure  P-5)  being
illegal, without any sanction of law  and  in  contravention  of  Regulation
425(b) of the Regulations of the Indian Air Force and policy  letters  dated
08.05.1980 and 10.08.1982 (Annexures P-1 and P-2);

            With a further prayer that the operation of the  impugned  order
(Annexure P-5) may kindly be stayed till the disposal of this writ  petition
since Air Force Regulations and policies explicitly confer  upon  Muslims  a
right to sport beard and provide for no discretion  to  the  respondents  to
take away this right under any circumstance”.



The challenge was to the direction issued to the Appellant to shave off  his
beard on 20 September 2005 on the ground that it was contrary to  Regulation
425(b) of the Regulations governing the Indian Air Force and to  the  policy
letters of 8 May 1980 and 10 August 1982.  Even prior to the institution  of
the  writ  petition,  the  Appellant  had  been  discharged  from   service.
Strictly speaking a mere challenge to the direction by which he  was  called
upon to shave off his beard would not subserve the cause  of  the  Appellant
once he stood discharged from service.  Be that  as  it  may,  the  Division
Bench of the High Court by its judgment and order dated 31  July  2008  came
to the conclusion that the purpose of Regulation 425(b) is  to  ensure  that
the identity of a person is not altered during the course of service  so  as
to render recognition possible.  The Division Bench  affirmed  the  judgment
of the learned Single Judge to the effect that maintaining a beard  was  not
an integral part of the religion professed by the Appellant.   In  the  view
of the High Court, the matter pertained to the Armed Forces where a  certain
degree of discipline had to be maintained  and  the  rules  and  regulations
broadly accommodate "the basic interest of various religions  in  a  secular
manner".

4     The policy governing the growth of hair,  including  facial  hair,  in
the Air Force has been enunciated  in  paragraph  425  of  the  Armed  Force
Regulations, 1964.  Regulation 425 provides as follows :

“425. Growth of Hair etc. by Air Force Personnel.

Except as in sub para (b), the hair of the head will be kept neatly cut  and
trimmed.  The hair  of  airman  under  detention/sentence  will  be  cut  no
shorter than is customary/ throughout the service except on  medical  advice
and except where on an application made by the airman he has been  permitted
to keep long hair.  Face will be clean shaven.  Whiskers and moustaches,  if
worn will be moderate length.

Personnel whose religion prohibits the cutting of the  hair  or  shaving  of
the face of its members will be permitted to  grow  hair  or  retain  beard.
However, such hair and/ or beards will be kept clean, properly  dressed  and
will not be removed  except  on  medical  grounds  or  on  application  duly
approved”.



Clause (a) of Regulation 425 mandates  firstly,  that  Air  Force  personnel
must keep their hair neatly cut and trimmed.  Secondly, facial hair  has  to
be shaved and  every  airman  must  have  a  clean  shaven  face.   Thirdly,
whiskers and moustaches though permitted have to be of  a  moderate  length.
The rest of the clause deals with Airmen under detention  or  sentence  with
which the present case is not concerned.   Clause  (b)  of  Regulation  425,
however, stipulates that an airman will be permitted  to  grow  hair  or  to
retain a beard where the religion professed by him prohibits the cutting  of
hair or shaving of facial hair.  In that case, the hair  and/or  beard  must
be kept clean and properly dressed and cannot be removed except  on  medical
grounds or on an application which is duly  approved.   The  touchstone  for
being allowed to grow one’s hair or to retain a beard is where  there  is  a
religious command which prohibits either the  hair  being  cut  or  a  beard
being shaved.

5     The Air Force is a combat force, raised and maintained to  secure  the
nation against hostile forces.   The  primary  aim  of  maintaining  an  Air
Force is to defend the nation from air  operations  of  nations  hostile  to
India and to advance air  operations,  should  the  security  needs  of  the
country so require.  The Indian Air Force has over eleven thousand  officers
and one lakh and twenty thousand personnel below  officers  rank.   For  the
effective and thorough functioning of a large combat force, the  members  of
the Force must  bond  together  by  a  sense  of  Espirit-de-corps,  without
distinctions  of  caste,  creed,  colour  or  religion.   There  can  be  no
gainsaying the fact that maintaining the unity of the Force is an  important
facet of instilling a  sense  of  commitment,  and  dedication  amongst  the
members of the Force.  Every member of  the  Air  Force  while  on  duty  is
required to wear the uniform and  not  display  any  sign  or  object  which
distinguishes one  from  another.   Uniformity  of  personal  appearance  is
quintessential to a cohesive, disciplined and coordinated functioning of  an
Armed Force.  Every Armed Force raised in a civilised  nation  has  its  own
‘Dress and Deportment’ Policy.

6     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.  That  is  why  the  Constitution  in  the
provisions of Article 33 stipulates that Parliament may by law determine  to
what extent the  fundamental  rights  conferred  by  Part  III  shall  stand
restricted or abrogated in relation inter alia to the members of  the  Armed
Forces so as to  ensure  the  proper  discharge  of  their  duties  and  the
maintenance of discipline among them.  Article 33 provides as follows :

“33. Power of Parliament to modify the rights  conferred  by  this  Part  in
their application to Forces, etc.- Parliament  may,  by  law,  determine  to
what extent any of the  rights  conferred  by  this  Part  shall,  in  their
application to-


(a) the members of the Armed Forces; or


(b) the members of the Forces charged with the maintenance of public  order;
or

(c) persons employed in any bureau or other organisation established by  the
State for purposes of intelligence or counter intelligence; or

(d) persons employed  in,  or  in  connection  with,  the  telecommunication
systems set up for  the  purposes  of  any  Force,  bureau  or  organisation
referred to in clauses (a) to (c), be  restricted  or  abrogated  so  as  to
ensure  the  proper  discharge  of  their  duties  and  the  maintenance  of
discipline among them.”

7     In the Indian Air Force, the norms governing the growth  of  hair  and
retention of facial hair is governed by Regulation  425.   Policy  documents
have also been issued from time to time.  On 28 April  1980,  the  Air  Head
Quarters issued a letter responding to queries  made  in  respect  of  Armed
Force  personnel  professing  Islam.   The  letter  opined  that   personnel
professing Islam are covered by the exception under paragraph 425(b) of  the
Regulations and that the beard should be "of such length when covered  by  a
fist no hair shall be visible outside".  Subsequently, on 10 August 1982  it
was stipulated by a policy letter that no permission was required by  Muslim
Air Force personnel to keep a beard so long as the airman  sported  a  beard
at the time of joining service.  However, if  an  airman  who  is  a  Muslim
desired to sport a beard after joining service, he  would  be  permitted  to
submit a formal application informing his commanding officer  of  this  fact
and to sport a beard from that date.  The airman would  not  be  allowed  to
remove the beard except on medical grounds or on an application approved  by
the Commanding Officer.  On  6  October  1999  a  comprehensive  policy  was
formulated in supersession of  the  Headquarters’  letter  dated  10  August
1982.  The policy document  laid  down  that  service  personnel  professing
Islam were not required to obtain formal permission if they already  sported
a beard at the time of joining service.  However, if  a  person  desired  to
grow a beard after joining service, he  was  required  to  submit  a  formal
application to the Commanding Officer who would  ascertain  the  reason  and
ensure that the beard was maintained in a neat, trim and tidy manner.    The
beard would not be allowed to be shaved  off  without  specific  permission.
The provisions in relation to the length of  the  beard  for  Muslim  airmen
contained in the earlier policy were reiterated.

8     In February 2003 the policy was  re-examined  so  as  to  implement  a
common code of conduct applicable to air force personnel.   On  24  February
2003 a  revised  policy  was  issued  with  the  concurrence  of  the  Union
government in the Ministry of Defence in supersession of the earlier  policy
dated 6 October 1999.   Para  2(a)  of  the  policy  governs  personnel  who
profess Sikhism.  Para 2(a) provides thus :

“Sikh  personnel  who  wear  turban  and  keep  beard   at   the   time   of
commission/enrolment  would  continue  to  do  so.   These  personnel   must
maintain the beard neatly dressed/tied and  rolled  and  not  kept  flowing.
They are to wear the turban while in uniform/civil dress whether  inside  or
outside  the  camp  except  during  PT/Games  and  activities   related   to
operations where wearing of turban is not feasible.  At all such  occasions,
Sikh personnel are to wear turban/patka or handkerchief  over  the  knot  of
hair as appropriate.  Sikh personnel keeping short hair  and  beard  are  to
wear turban as applicable to those maintaining long hair”.



Paragraph 2(b) of the policy states thus :

“b)   Only those Muslim personnel who had kept beard  along  with  moustache
at the time of commissioning/enrolment  prior  to  01  Jan  2002,  would  be
allowed to keep beard and moustache.  Such personnel are to maintain  it  in
a manner that it is neat, trimmed and tidy and  not  more  than  the  length
which could be covered by one fist.  Muslims  who  have  grown  beard  after
joining service should shave off  the  beard.   Under  no  circumstances,  a
Muslim person who had beard at the time of joining  service  before  01  Jan
2002 shall be allowed to maintain beard without moustache.  Moustache  would
be a part of the beard”.



Para 2(c) allows non-sikh personnel to sport a  beard  for  a  short  period
towards fulfilment of  specified  religious  rights  and  ceremonies  for  a
period not exceeding thirty  days.   Para  2(c)  stipulates  that  while  in
uniform, the personal appearance  of  an  individual  should  not  give  any
religious bias. Hence Tilak/Vibhuti on the forehead, a thread on  the  wrist
or arm of the airman and a trinket in the ear (etc.) are not to be worn.

9     On 9 June 2003 a letter was issued by the Air Headquarters  containing
a clarification in the following terms :

“4.   In an effort to allay the  fears  or  misconception  of  the  Non-Sikh
personnel,   it   is   clarified   that   all    those    personnel    whose
religion/religious practices demand sporting of beard and  moustaches;  they
could continue to wear the beard as long  as  such  a  permission  has  been
granted to them prior to issuance of this  letter  or  they  had  beard  and
moustaches, as part of their religious practices, at  the  time  of  joining
the Air Force.  In pursuance of this directive,  Commanders  are  to  ensure
that necessary endorsements are made  in  the  personal  documents  of  such
individuals  and  photographs  depicting  such   changes   in   the   facial
appearances are affixed to  them.   The  Identity  Cards  also  need  to  be
changed accordingly”.



The above letter states that personnel whose religion  requires  sporting  a
beard  and  moustache  would  be  allowed  to  grow  a  beard  provided  (i)
permission was granted prior to the issuance  of  the  letter;  and  (ii)  a
beard and moustache was grown at the time of joining the Air Force.

In pursuance of this  directive,  commanders  have  been  required  to  make
endorsements in the personal documents depicting in the photographs  affixed
such changes in the facial appearance.  Identity cards have  to  be  changed
accordingly.   The  policy  document  now  specifically  provides  that   if
permission had been granted to non-Sikh personnel  prior  to  9  June  2003,
they could continue to sport a beard or if they had as a part  of  religious
practice done so at the time of joining the Air Force.

10    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.

11    We see no reason to take a view of the matter  at  variance  with  the
judgment under appeal.  The Appellant has been unable to establish that  his
case falls within the ambit of Regulation  425(b).   In  the  circumstances,
the Commanding Officer was acting within his jurisdiction  in  the  interest
of maintaining discipline of the  Air  Force.   The  Appellant  having  been
enrolled as a member of the Air Force was necessarily required to  abide  by
the discipline  of  the  Force.   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  which  are
indispensable to the Air Force, as  indeed  to  every  armed  force  of  the
Union.

12    For these reasons, we see no merit in the Civil  Appeal  No.  8644  of
2009.  The Civil Appeal shall stand dismissed.  However, with no  orders  as
to costs.

13    In the view of the above, Civil Appeal No. 8643 of 2009  is  dismissed
accordingly.


                               ……........................................CJI
                                                   [T S  THAKUR]


                          …................................................J
                                                    [Dr D Y  CHANDRACHUD]


                            …..............................................J
                                                     [L. NAGESWARA RAO]
New Delhi
December   15, 2016

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