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.JUDGMENTThe 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2005 was withdrawn.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 JUDGMENT 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 JUDGMENT 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.
(a) 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.
(b) 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”.
JUDGMENTClause (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 JUDGMENT 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 JUDGMENT
(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 JUDGMENT
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, JUDGMENT 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.
[L. NAGESWARA RAO] New Delhi December 15, 2016