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
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
