MOHAMMED ZUBAIR CORPORAL NO. 781467-GversusUNION OF INDIA & ORS.

                           [2016] 9 S.C.R. 111


       MOHAMMED ZUBAIR CORPORAL NO. 781467-G                                   A
                                    v.
                      UNION OF INDIA & ORS.
                     (Civil Appeal No. 8643 of2009)
                         DECEMBER 15, 2016
                                                                               B
     [T. S. THAKUR, CJI, DR. D.Y. CHANDRACHUD AND
                     L. NAGESWARA RAO, JJ.]
       Armed Forces Regulation, 1964 - Regn. 425 - Air Force
Rules, 1969 - r. 15(2j(g)(ii) - Growth of hair etc. by Air Force
Personnel -Airman in the Indian Air Force, discharged from service
since he asserted his right to retain a beard on religious grounds             c
since he is a Muslim - Said order upheld by the High Court - On
appeal, held: Maintenance of identity is a crucial element in the
safety and security of the Forces - No material produced to indicate
that the appellant professes a religious belief that would bring him
within the ambit of Regn. 425(b) which applies to "personnefwhose              D
religion prohibits ~the cutting off the hair or .shaving off the face of
its members" - Thus, the Commanding Officer acted within his
iurisdiction in the interest of maintaining discipline of the Air Force-
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              E
intended to discriminate (]gains! religious beliefs nor do they have
the effect of doing so - Their object and purpose is tp ensure
uniformity, cohesiveness, discipline and order, indispensable to every
armed force of the Union - Thus, the order of High Court upheld -
Constitution of India - Art. 33 - Armed Forces.                                F
        Appellant was enrolled as Airman in the Indian Air Force. He
filed an application seeking permission to keep a beard on religious grounds
since he is a Muslim. He was granted provisional permission. Thereafter,
the appellant was directed to shave off his beard in view of the subsequent
policy of the Air Force. The appellant, however, asserted his right to
                                                                               G
retain a beard. Eventually, he was discharged from service. The appellant
then filed a writ petition. The Single Judge of the High Court dismissed
the petition holding that maintaining a beard was not an integral part of
the religion professed by the appellant. The said order was upheld by the
Division Bench. Hence, the instant appeals.
                                                                               H
                                    111
112            SUPREME COURT REPORTS                      [2016] 9 S.C.R.


A           Dismissing the appeals, the Court
             HELD: 1.1 No material has been produced 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
B     face of its members". The policy letters 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 8.05.1980 did initially permit an airman professing
      Islam to sport a beard of a prescribed length. This was revisited
c     by the Air Headquarters on 10.08.1982 and on 6.10.1999. On
      6.10.1999 the Air Headquarters 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
D     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
 E    infiltration. The policy was again revisited on 24.02.2003. This
      time a limited protection was granted for those who had a beard
      prior to 1.01.2002 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 9.06.2003 by
 F    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
 G
      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. (Para 10] (120-C-H; 121-A-B]
H
    MOHAMMED ZUBAIR CORPORAL NO. 781467-G v. UNION                           113
                  OF INDIA & ORS.

            1.2 The appellant.was unable to establish that his case falls     A
    . 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
                                                                              B
      policies in regard to personal appearance are not intended to
1' . 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 lJhich are indispensable to
      the Air Force, as indeed to every armed force of the Union. [Para
      11] (121-C-D]                                                           c
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8643
   of2009.
         From the Judgment and Order dated 31.07.2008 of the High Court
   of Punjab and Haryana at Chandigarh in L.P.A. No. 197 of2008
                                                                              D
                                   WITH
         C. A. No. 8644 of2009.
         Salman Khurshid, Sr. Adv., Mohd. Irshad Hanif, Adv. for the
   Appellant.
                                                                              E
         R. Balasubramanian, Surender Kumar Gupta, Satya Siddiqui, B.
   Krishna Prasad, Mukesh Kumar Maroria, Advs. for the Respondents.
         The Judgment of the Court was delivered by
         DR. D. Y. CHANDRACHUD, J. Civil Appeal No. 8644 of
   2009 I. The Appellant was enrolled as an Airman in the Indian Air          F
   Force on 19 December 2001. After enrolment he was sent for training
   and was assigned the trade of Workshop Fitter (8). 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
                                                                              G
   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 I 0 June 2005, when      H
114             SUPREME COURT REPORTS                          [2016] 9 S.C.R.



A     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
B
      returned on I 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
c     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 BRO, AF that under
      the current policy of the Air Force (Area HQ/C 23406/24/PS) dated 24
D
      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 offhis beard and informed thatthe provisional permission
      granted to him on 3 August 2005 was withdrawn.
             2. On 17 September 2005 the Appellant filed a writ petition before
 E    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
 F    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 31July2008.
      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
G     service. !~1 reply to the notice, the Appellant asserted his right to retain
      a beard. The Appellant was eventually discharged from service under
      Rule I 5(2)(g)(ii) of the Air Force Rules 1969 on 26 November 2008.
              3. In the writ proceedings before the High Court, which were
      instituted on 17 September 2005 the Appellant sought the following reliefs:
 H
MOHAMMED ZUBAIR CORPORAL NO. 781467-G v. UNION                                  115
   OF INDIA & ORS. [DR. D. Y. CHANDRACHUD, J.)

      "a writ of Certiorari or any other appropriate writ, order or direction    A
      for quashing ofAnnexure 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 oflaw 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
                                                                                 B
      (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            c
       . ".
      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 Regulatio~s governing the Indian Air Force and
to the policy letters of8 May 1980 and 10 August 1982. Even prior to the         D
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          E
July 2008 came to the conclusion thatthe 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        F
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 oftheArmed Force              G
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/
                                                                                 H
116           SUPREME COURT REPORTS                         [2016] 9 S.C.R.


A             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          (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".
c        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. C411.se (b) of
D 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
E 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
F 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-
G 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
H object which distinguishes one from another. Uniformity of personal
 MOHAMMED ZUBAIR CORPORAL NO. 781467-G v. UNION                                  117
    OF INDIA & ORS. [DR. D. Y. CHANDRACHUD, J.]

appearance is quintessential to a cohesive, disciplined and coordinated           A
functioning ofan 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                B
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 Parliameat may by law determine
to what extent the fundamental rights conferred by Part III shall stand
                                                                                  c
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,            D
       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              E
       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 connet:tion with, the                        F
       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          G,
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
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118            SUPREME COURT REPORTS                         [2016] 9 S.C.R.


A 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 I 0 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 ofjoining service.
  However, if an airman who is a Muslim desired to sport a beard after
B
  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
c 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
D 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
E
      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:
F           "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
G           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''.
H Paragraph 2(b) of the policy states thus:
MOHAMMED ZUBAIR CORPORAL NO. 781467-G v. UNION                                    119
   OF INDIA & ORS. [DR. D. Y. CHANDRACHUD, J.)

      "b) Only those Muslim personnel who had kept beard along with                A
      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
                                                                                   B
      should shave off the beard. Under no circumstances, a Muslim
      person who had beard at the time ofjoining service before 0 l 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       c
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                D
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 !fas           E
       been granted to them prior to issuance of this letter or they had
       beard and moustaches, as part of their n:ligious 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               F
       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             G
 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
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120             SUPREME COURT REPORTS                           [2016] 9 S.C.R.


A 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 ofjoining 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
B     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
c     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 theAir 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
D     supplementary in nature. The policy letter of8 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
 E
      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
 F    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
G     the context of the threat ofinfiltration. The policy was again revisited on
       24 February 2003. This time a limited protection was granted for those
       who had a beard prior to I January 2002 atthetime 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
 H     that personnel whose religion demands sporting a beard, would be allowed
 MOHAMMED ZUBAIR CORPORAL NO. 781467-G v. UNION                                  121
    OF INDIA & ORS. [DR. D. Y. CHANDRACHUD, J.]

to do so provided they were granted permission prior to the date of the           A
letter or had grown a beard atthe time of joining Air Force. So long as
the provisions ofRegulation 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
                                                                                  B
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      c
 circumstances, the Commanding Officer was acting within his jurisdiction
 in the interest of maintaining discipline of the Air Force. The Appellant
 having been enroiled 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        D
 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.              E
8644 of2009. The Civil Appeal shall stand dismissed. However, with
no orders as to costs.
                                                                    /·
      13. In the view of the above, Civil Appeal No. 8643 of2009 is
dismissed accordingly.
Nidhi Jain                                                  Appeals dismissed.     F