Maintaining Beard By A Member Of Disciplined Force May Not Be Protected Under Article 25: Allahabad HC
In a very strong, strict, sagacious and suave observation, the Allahabad High Court has just recently on August 12, 2021 in a learned, laudable, landmark and latest judgment titled P.N.O.052150337 Mohd. Farman vs. State of U.P. Thru. Prin. Secy. Home & Ors. made it absolutely clear that maintaining beard by a member of disciplined force may not be protected under Article 25 of Constitution. It has also observed that non-cutting the beard by a police official despite there being a direction circular issued by Higher Officials that police personnel should not have a beard is not only a wrong behavior but the same is misdemeanor, misdeed and delinquency of such official. The Single Judge Bench of Justice Rajesh Singh Chauhan made it absolutely clear in his 11-page brief, brilliant, bold and balanced judgment that police force has to be a disciplined force and being a law enforcing agency, it is necessary that such force must have a secular image that strengthens the countenance of national integration.
How can it be easily glossed over that even in a hardline Islamic country like Pakistan, we see PM Imran Khan never having any beard, former PM Nawaz Sharif never having any beard, former President and former Army Chief General Pervez Musharraf never having any beard, former President and former Army Chief late Gen Zia ul Haq never having any beard and above all even in our homeland former Indian President Dr APJ Abdul Kalam never having any beard?
On a personal note, when I was studying in Sagar University in Madhya Pradesh doing my BSc, I too started enjoying keeping beard and this greatly angered my best friend Sageer Khan. One day he after jogging with me took me to a barber shop and said that just now have a clean shave. Initially I tried to evade saying it does not make any difference and then he thundered that, “It is true that I don’t like when Muslims say to you “Aadab Barse” and “Walik-o-Salam” and to me Hindus say “Jai Ram Ji Ki” and “Jai Mata Di” because I consider Hindu and Muslims as one and not different and consider no difference between you and me and so we must appear same with clean shave but the real reason for asking you to get shaved is beard is not good impression of any person’s personality and I am deadly opposed to it. I will never want you to ever keep beard in your life as it shows you in a poor light in front of others as a disinterested and lazy person. I fail to understand why many Muslims keep beard? As you have seen, I offer namaz five times a day which is imperative also for Muslims but keeping beard is certainly not imperative on anyone in Islam and it is individual’s own choice whether to keep or not to keep!”
To start with, the ball is set rolling in this notable judgment authored by a Single Judge Bench of Allahabad High Court comprising of Justice Rajesh Singh Chauhan in para 2 wherein it is put forth that, “By means of first writ petition, the petitioner has assailed the Circular dated 26.10.2020 issued by the Director General of Police, U.P. Lucknow (Annexure No.01) whereby the guidelines have been issued in respect of wearing proper uniform and proper appearance warranted for the member of disciplined force.”
Furthermore, the Bench then states in para 3 that, “The petitioner has also assailed the suspension order dated 05.11.2020 passed by Deputy Inspector General of Police/Senior Superintendent of Police, Ayodhya (Faizabad) (Annexure no.02) whereby the petitioner has been placed under suspension in contemplation of departmental inquiry for the reason that the petitioner despite being the member of disciplined force is maintaining his beard and despite the specific direction being issued by the superior authority to shave the beard he did not follow such direction.”
Moving on, the Bench then further states in para 4 that, “The petitioner has also assailed the order dated 13.11.2020 passed by Deputy Inspector General of Police/Senior Superintendent of Police, Ayodhya (Faizabad) (Annexure No.03) rejecting the application of the petitioner dated 03.11.2020 whereby the petitioner had sought permission to maintain his beard in accordance with tenets of Muslim religion.”
While continuing in the same vein, the Bench then also reveals in para 5 that, “Whereas, by means of second Writ Petition (S/S) No. 17225 of 2021 the petitioner has assailed the charge-sheet dated 29.07.2021 issued by Superintendent of Police (Rural Area), Ayodhya (Faizabad) which is contained as Annexure No.04 to the writ petition.”
Needless to say, the Bench then holds in para 6 that, “Since the facts of both the cases are common, therefore, both the writ petitions are being decided by the common judgment/order.”
To put things in perspective, the Bench then enunciates in para 7 that, “In the first writ petition so far as the order of suspension dated 05.11.2020 is concerned, it is to be noted here that the charge-sheet has been issued against the petitioner on 29.07.2021 which has been challenged in the second writ petition, therefore, as per my considered opinion if the charge-sheet is issued against any employee who is under suspension, the employee should submit his defence reply taking all pleas and grounds which are available to him enclosing therewith the copies of relevant documents which are necessary for disposal of the issue and the departmental inquiry should be conducted and concluded strictly in accordance with law by following the principals of natural justice with expedition preferably within a period of three months from the date the defence reply to the charge-sheet has been filed. Thereafter, the disciplinary authority may pass final order providing copy of the inquiry report and seeking explanation from the petitioner as per law. Therefore, the suspension order may not be interfered at least for the aforesaid period of three months till the departmental inquiry concludes. However, if the departmental inquiry does not conclude subject to the proper cooperation of the petitioner with the inquiry proceedings within a period of three months from the date of receipt of the defence reply to the charge-sheet, the suspension order shall be kept in abeyance and the petitioner shall be entitled for consequential relief. However, in that case the departmental inquiry may go on and final order may be passed but strictly in accordance with law.”
Going ahead, the Bench then adds in para 8 that, “So far as the Circular dated 26.10.2020 issued by the Director General of Police, U.P. Lucknow (Annexure No.01) issuing guidelines in respect of wearing proper uniform and maintaining the appearance in a manner required for member of disciplined force is concerned, I am of the considered opinion that this is a domain of competent authority to issue guidelines in respect of wearing proper uniform and keeping the appearance in a manner required for the members of disciplined force and no interference should be done, inasmuch as, maintaining and wearing proper uniform as well as maintaining physical appearance is one of the first and foremost requirement of the members of disciplined force. The parameters determined for the members of disciplined force are not the same as of parameters relating to the members of other services. By means of Circular dated 26.10.2020, the Director General of Police, U.P. Lucknow has followed other circulars referred in the circular itself issued from time to time with effect from 1985 till 2018 and the members of disciplined force are strictly following such guidelines.”
Simply put, the Bench then envisages in para 9 that, “Therefore, I do not find any infirmity or illegality in the Circular dated 26.10.2020. Likewise, the application of the petitioner dated 03.11.2020 has been rejected in terms of Circular dated 26.10.2020 assigning the reasons, therefore, I do not find any infirmity or illegality in the order dated 13.11.2020 rejecting the application of the petitioner dated 03.11.2020 whereby he had requested to maintain his beard in accordance with the tenets of Muslim religion. The order dated 13.11.2020 is a speaking and reasoned order, therefore, it may not be interfered.”
As a corollary, the Bench then holds in para 10 that, “In view of aforesaid facts and reasons stated herein above, the first Writ Petition (S/S) No. 24979 of 2020 is hereby dismissed.”
Quite ostensibly, the Bench then hastens to add in para 11 that, “It is needless to say that the Inquiry Officer shall conduct and conclude the departmental inquiry strictly in accordance with law, following the principals of natural justice with expedition preferably within a period of three months subject to the cooperation of the petitioner, inasmuch as, no departmental inquiry may be concluded to its logical end unless the employee cooperates with the inquiry proceedings properly.”
Quite rightly, the Bench then maintained in para 19 that, “Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that a member of a disciplined force must strictly follow the executive orders or circulars or instructions issued by the department or by the higher authority of the department as those executive orders etc. are as good as service condition.”
Adding more to it, the Bench then observes in para 20 that, “As a matter of fact such executive intimation/order has been issued to maintain the discipline in the force directing to keep the appearance and uniform befitting for the members of disciplined force. Further, police force has to be a disciplined force and being a law enforcing agency, it is necessary that such force must have secular image which strengthen the countenance of national integration. Sri Amit Bose, learned Senior Advocate while assailing the charge-sheet has submitted that the conduct of the petitioner not cutting his beard despite the specific direction being issued by the superior authority does not come within the purview of misconduct, therefore, no charge-sheet should have been issued against the petitioner to conduct the departmental inquiry.”
Adding further more strength to its findings, the Bench then waxes eloquent in para 21 that, “So as to appreciate the aforesaid submission of Sri Amit Bose, I am considering the definition of “Misconduct” as per Black’s Law Dictionary Ninth Edition is a dereliction of duty; unlawful or improper behaviour. As per The New International Webster’s Comprehensive Dictionary of the English Language (Encyclopedic 2013 Edition), the “Misconduct” is to behave improperly, to mismanage or bad behaviour. As per P. Ramanatha Aiyar’s The Law Lexicon Encyclopedic Law Dictionary with Legal Maxims, Latin Terms and Words & Phrases Second Edition, the “Misconduct” means a transgression of some established and defend rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement etc.”
Most significantly, the Bench then sends across a loud and clear message in para 22 that, “Therefore, non-cutting the beard despite making the petitioner aware by the In-charge Station House Officer of police station Khandasa when the petitioner was posted as constable to the effect that the police personnel may not have beard as it is a violation of direction/circular being issued by the higher officials is not only a wrong behaviour but the same is misdemeanor, misdeed and delinquency of the petitioner. So the submission of Sri Amit Bose is not acceptable to the effect that the alleged conduct of the petitioner is not misconduct. However, his misconduct/misdeed shall be examined by the Inquiry Officer during the course of inquiry, strictly in accordance with law by affording him an opportunity of hearing on that no observations of this Court are required.”
What is no less significant is that the Bench then also makes it abundantly clear in para 23 that, “So far as the submission regarding protection of fundamental right enshrined under Article 25 of the Constitution of India is concerned, it is clear that Article 25 guarantees freedom of conscience and free profession, practice and propagation of religion, therefore, having beard by a member of disciplined force may not be protected under Article 25 of the Constitution of India, inasmuch as, Article 25 of the Constitution of India does not confer absolute right in this regard, all the rights have to be viewed in the context and letter and spirit in which they have framed under the Constitution. As a matter of fact rights guaranteed under Article 25 of the Constitution of India have inbuilt restrictions.”
Be it noted, the Bench then enunciates in para 26 that, “Three Judges of the Hon’ble Apex Court in re:- Mohammed Zubair Corporal No. 781467-G vs. Union of India and others [reported in (2017) 2 SCC 115] has held that regulations and policies in regard to personal appearance are not intended to discriminate against religious beliefs nor do they have effect doing so. Their object and purpose is to ensure uniformity, cohesiveness, discipline and order which are indispensable to the force.”
In continuation, the Bench then commendably points out in para 27 that, “In this case also the Hon’ble Apex Court was examining the question as to whether the police personnel can keep beard taking shelter of Article 25 and 26 of the Constitution of India. Before the Hon’ble Apex Court in re:- Mohammed Zubair (supra) this fact could not be established by the litigant as to whether there is any specific mandate in Islam which prohibits the cutting of hairs or shaving the facial hairs and no substantial material was placed before the Hon’ble Apex Court to convince that a police personnel professing Islam may not cut his beard or hairs. Para 15 & 18 of the judgment are being reproduced herein below:-
“15. 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”. The 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.”
“18. 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.”
As we see, the Bench then holds in para 28 that, “In view of the facts, reasons and case laws so cited by the respective parties, I do not find any infirmity or illegality in the impugned charge-sheet dated 29.07.2021 issued against the petitioner by the Senior Superintendent of Police, Ayodhya/Faizabad (Annexure No.04 to the writ petition). I am also of the considered opinion that the departmental inquiry against the petitioner should be conducted and concluded to its logical end as directed above. The judgment of Hon’ble Apex Court in re:- Upendra Singh (supra) may not rescue the petitioner, inasmuch as, the allegation levelled in the charge-sheet, prima facie, constitute misconduct subject to the specific findings of the Inquiry Officer on that.”
As an inevitable fallout, the Bench then holds in para 29 that, “Therefore, I hereby dismiss the writ petition being misconceived and direct the Inquiry Officer to conduct and conclude the inquiry against the petitioner in a manner directed above and the disciplinary authority may pass final order strictly as per law.”
On a different note, the Bench then makes it clear in para 30 that, “It is, however, made clear that no prejudice shall be caused to the petitioner for the reason that he has filed the aforesaid writ petitions challenging the suspension order and charge-sheet.”
Finally, the Bench then holds in para 31 that, “No order as to costs.”
No doubt, this judgment very commendably cites the relevant case laws as also accords pragmatic reasons for holding why maintaining beard by a member of disciplined force may not be protected under Article 25 of Constitution. Being from an Army background, I have never in my life seen any Muslim officer or soldier having a beard as it is considered to be an act of “grave indiscipline” something which is totally unacceptable!
On a very personal note, even in my own house my mother and father have always been opposed to sporting beard and once when I went home in 1994 at Babina from Sagar, my mother was shell shocked to see me in beard and thought that I had converted to Islam. She slapped me gently and asked me to swear if I have not converted as she was aware of my deep and abiding friendship with Sageer Khan. Then I assured her pledging that I have not converted even though I was impressed with his religion as he practiced offering namaz five times a day but as Sageer himself was firmly against conversion and so he even took a vow also from me to never enter mosque or bow even head in front of mosque but always worship Lord Shiv whom I worshipped till then in 1994 till I die and in fact Sageer Khan himself was deadly against beard and he never kept the same and as he had gone home at Vidisha so I got the unique opportunity to develop the same! Then she got relaxed but still she also took a vow from me as she felt that a man with beard looks like a lazy, laggard and lethargic person! So I had to honour it! By all accounts, what the Allahabad High Court has held makes eminent sense also and it has brilliantly justified it also in this noteworthy judgment! This judgment must be definitely implemented in letter and spirit and it is really a worth hailing judgment and the best part would be that it should not be linked to be in favour or against any one particular religion!