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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

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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

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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

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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

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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”.

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

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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.

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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.”

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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

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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

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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”.

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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

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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

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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.

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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