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Mohammed Fasi Vs. Superintendent of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1985)ILLJ463Ker
AppellantMohammed Fasi
RespondentSuperintendent of Police and ors.
Cases ReferredIn P. Balakotaiah v. Union of India and Ors.
Excerpt:
.....of the supreme court and high court and ministers have not been wearing beards. it extends to religious practices and propagation of religion as well, subject to such restrictions as are mentioned in the constitution itself. it undoubtedly has its basis in a system of pleas or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it is not correct to say that religion is nothing else but a doctrine or belief. if religious practices run counter to public order, morality or health or a policy of social welfare upon which the state has embarked, then the religious practices must give way before the good of the people of the state as a whole. the police standing orders referred to above requiring police personnel to have their..........freedom of religion in our constitution is not confined to religious beliefs only; it extends to religious practices and propagation of religion as well, subject to such restrictions as are mentioned in the constitution itself.7. in ratilal v. state of bombay : [1954]1scr1055 it is stated at page 391:10. article 25 of the constitution guarantees to every person and not merely to the citizens of india the freedom of conscience and the right freely to profess, practise and propagate religion. this is subject, in every case, to public order, health and morality. further exceptions are engrafted upon this right by clause (2) of the article. sub-clause (a) of clause (2) saves the power of the state to make laws regulating or restricting any economic, financial, political or other secular.....
Judgment:

Balakrishna Menon, J.

1. The petitioner a Head-constable in the Police Service of the State of Kerala, seeks the issue of a writ of certiorari to quash Ext. P 2 proceedings of the 3rd respondent the Inspector General of Police, Kerala, declining his request for permission to grow beard on a permanent basis.

2. The petitioner entered service as a Police constable on 1st April, 1963 and was promoted as Head-constable on 3rd April, 1974. From February 1981 onwards he started growing beard and submitted a representation Ext. P 1 dated 10th February, 1981 to the Inspector General of Police for permission to grow beard, as according to him, shaving the face is opposed to Quoranic injunctions and the Islamic religion. As a devout Muslim he wants to lead a religious life without transgressing the Code of Conduct, prescribed by his religion. His petition Ext. P 1 was rejected by the Inspector General of Police, as per his order Ext. P 2 dated 7th December, 1981 declining his request to grow beard on a permanent basis. A similar request to the Government was rejected as per Ext. P 6 order dated 17th March, 1982 produced along with C.M.P. No. 2706 of 1985 seeking to amend the O.P. adding a prayer to quash also Ext. P 6, as opposed to Article 25 of the Constitution.

3. In support of his contention the petitioner has produced Exts. P 4 and P 5 as per which the Air Force Personnel at Bangalore and Members of the Armed Forces in Karnataka respectively belonging to the Muslim religion are permitted to grow beard. The petitioner relies on Hadiths Nos. 780 and 781 in Vol. 7 of Sahih Al-Bukhari, at pages 516 and 517, extracted below, as embodying the prophets instructions to his followers to grow beard.

780. Narrated Nafi: Ibn 'Umar said, 'The Prophet said, 'Do the opposite of what the pagans do. Keep the beards and cut the moustaches short'. Whenever Ibn 'Umar performed the Hajj or 'Umra, he used to hold his beard with his hand and cut whatever remained outside his hold.

781. Narrated Ibn 'Umar: Allah's Apostle said, 'Cut the moustaches short and leave the beard (as it is).

Hadiths are said to be the words of the Prophet spoken on different occasions and at different contexts. Hadith 786 at page 519 of Sahih Al-Bukhari, Vol. 7 reads as follows:

786. Narrated Abu Huraira; The Prophet said, 'Jews and Christians do not dye their hair so you should do the opposite what they do.

The petitioner has no case that dyeing the hair is farz (obligatory) according to Islam. These statements by the Prophet made apparently in different contexts are only sunnath (optional) and are not understood as obligatory for every Musalman to follow.

4. In the additional counter affidavit dated 4th February 1985 filed on behalf of the respondents it is stated at page 2:

The Court can judge the existence or otherwise of a religious practice. Common experience shows that such a practice is not in vogue. The President of a neighbouring Theocratic Islamic Republic does not wear a beard. Similarly high dignitaries like President, Vice President, Judges of the Supreme Court and High Court and Ministers have not been wearing beards.

It is also not disputed that the petitioner himself had no beard ever since his entry in service in the year 1963 until he submitted his representation Ext, P 1 in February 1981 for permission to grow beard as a religious requirement enjoined by the holy Quoran and the words of the Prophet. Counsel for the petitioner was not able to point out anything said in the holy Quoran requiring the followers of Islam to grow beard. The practice of growing beard and dyeing hair can only be treated as optional and not obligatory among the Muslims.

5. Under Article 25(1) of the Constitution all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health and to the other provisions of Part III of the Constitution. Clause (2) of Article 25 preserves the right of the State inter alia to make laws to provide for social welfare and reform and to regulate economic, financial, political or other secular activity associated with religious practice. Referring to the right to freedom of religion contained in Articles 25 - 30 of the Constitution, Khanna, J. in The Ahmedabad St. Xaviers College, Society and Anr. etc. v. State of Gujarat and Anr. : [1975]1SCR173 , stated as follows at page 1413:

75. Before we deal with the contentions advanced before us and the scope and ambit of Article 30 of the Constitution, it may be pertinent to refer to the historical background. India is the second most populous country of the world. The people inhabiting this vast land profess different religions and speak different languages. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity. It is a mosaic of different religions, languages and cultures. Each of them has made a mark on the Indian polity and India today represents a synthesis of them all. The closing years of the British rule were marked by communal riots and dissensions. There was also a feeling of distrust and the demand was made by a section of the Muslims for a separate homeland. This ultimately resulted in the partition of the country. Those who led the fight for independence in India always laid great stress on communal amity and accord. They wanted the establishment of a secular State wherein people belonging to the different religions should all have a feeling of equality and non-discrimination. Demand had also been made before the partition by sections of people belonging to the minorities for reservation of seats and separate electorates. In order to bring about integration and fusion of the different sections of the population, the framers of the Constitution did away with separate electorates and introduced the system of joint electorates, so that every candidate in an election should have to look for support of all sections of the citizens. Special safeguards were guaranteed for the minorities and they were made a part of the fundamental rights with a view to instil a sense of confidence and security in the minorities. Those provisions were a kind of a Charter of rights for the minorities so that none might have the feeling that any section of the population consisted of first-class citizens and the others of second class citizens. The result was that minorities gave up their claims for reservation of seats. Sardar Patel, who was the Chairman of the Advisory Committee dealing with the question of minorities, said in the course of his speech delivered on February 27, 1947:

This Committee forms one of the most vital parts of the Constituent Assembly and one of the most difficult tasks that has to be done by us is the work of this committee. Often you must have heard in various debates in British Parliament that have been held on this question recently and before when it has been claimed on behalf of the British Government that they have a special responsibility - a special obligation - for protection of the interests of the minorities. They claim to have more special interest than we have. It is for us to prove that it is a bogus claim, a false claim, and that nobody can be more interested than us in India in the protection of our minorities. Our mission is to satisfy every interest and safeguard the interests of all the minorities to their satisfaction'. (The Framing of India's Constitution, B. Shiva Rao, Select Documents, Vol. II, P. 66). It is in the context of that background that we should view the provisions of the Constitution contained in Articles 25 - 30. The object of Articles 25 - 30 was to preserve the rights of religious and linguistic minorities, to place them on a secure pedestal and withdraw them from the vicissitudes of political controversy. These provisions enshrined a befitting pledge to the minorities in the Constitution of the country whose greatest son had laid down his life for the protection of the minorities. As long as the constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach pf faith, it would be constitutionally impermissible and liable to be struck down by the courts. Although the words secular state are not expressly mentioned in the Constitution, there can be no doubt that our Constitution makers wanted establishment of such a state. The provisions of the Constitution were designed accordingly. There is no mysticism in the secular character of the state. Secularism is neither anti-God, nor pro-God; it treats alike to devout, the agnostic and the atheist. It eliminates God from the matters of the state and ensures that no one shall be discriminated against on the ground of religion. The Constitution at the same time expressly guarantees freedom of conscience and the right freely to profess, practise and propogate religion. The Constitution-makers were conscious of the deep attachment the vast masses of our country had towards religion, the sway it had on their minds and the significant role it played in their lives. To allay all apprehensions of interference by the legislature and the executive in matters of religion, the rights mentioned in Articles 25 - 30 were made a part of the fundamental rights and religious freedom contained in those Articles was guaranteed by the Constitution.

The preamble of the Constitution after its amendment by the 42nd Amendment Act has expressly declared the secular character of the Constitution.

6. In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar : [1954]1SCR1005 , the Supreme Court has laid down that the freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices and propagation of religion as well, subject to such restrictions as are mentioned in the Constitution itself.

7. In Ratilal v. State of Bombay : [1954]1SCR1055 it is stated at page 391:

10. Article 25 of the Constitution guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess, practise and propagate religion. This is subject, in every case, to public order, health and morality. Further exceptions are engrafted upon this right by Clause (2) of the Article. Sub-clause (a) of Clause (2) saves the power of the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; and Sub-clause (b) reserves the State's power to make laws providing for social reform and social welfare even though they might interfere with religious practices.

Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.

8. The contention that Indian Musalmans had been sacrificing cows from time immemorial as enjoined or at any rate as sanctioned by their religion and this practice of religion is protected by Article 25 of the Constitution was negatived by the Supreme Court in M.H. Quareshi v. State of Bihar : [1959]1SCR629 , on the ground that there was no material on record to enable the court to conclude that sacrifice of cow even on the Bakr Id Day is an obligatory overt act for a musalman to exhibit his religious beliefs and ideas. This conclusion was reached after referring to certain historic events such as that the Moghul Emperor Babar had prohibited slaughter of cows as and by way of religious sacrifice and also directed his son Humayun to follow the same example. Similarly Emperors Akbar, Jehangir, and Ahmad Shah, had prohibited cow slaughter. Nawab Hyder Ali of Mysore made cow slaughter an offence punishable with the cutting of the hands of the offenders. The Supreme Court refers also to the recommendations of the Gosamvardhan Enquiry Committee set up by the Uttar Pradesh Government in 1953 recommending total ban on slaughter of cows. It was also noticed that three of the members of the aforesaid Committee were Muslims and they fully concurred with its recommendations. It was on these materials the Supreme Court held that the sacrifice of cow on Bakr Id Day cannot be accepted as an obligatory overt act for a musalman to exhibit his religious beliefs and ideas. There is no infringement of rights under Article 25 if the restriction relates to non essential practices

9. In Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. : [1962]1SCR383 what are matters of religion as stated by Mukherjee, I. in Lekshmindra Tirtha Swamiar's case (supra) is summarised by Gajendragadkar, J., at page 1415 as follows:

Dealing with the questions as to what are the matters of religion, the learned Judge observed that the word 'religion' has not been defined in the Constitution, and it is a term which is hardly susceptible of any rigid definition. Religion, according to him, is a matter of faith with individual or communities and it is not necessarily theistic. It undoubtedly has its basis in a system of pleas or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it is not correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.

Referring also to the same view expressed by Venkatarama Aiyar, J. in Venkataramana Devaru v. State of Mysore : [1958]1SCR895 , the learned judge observed:

Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.

These observations of the learned Judge would squarely apply also to the practice of religion referred to in Article 25 of the Constitution.

10. Justice Douglas in U.S. v. Ballard 32 U.S. 78 stated at page 86:

The First Amendment has a dual aspect. It not only forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship but also safeguards the free exercise of the chosen form of religion; Cantwell v. Connecticut (140) 310 U.S. 296 (303). Thus, the amendment embraces two concepts-freedom to believe and freedom to act. The first is absolute but in the nature of things the second cannot be.

Chief Justice Waite in Reynolds v. United States (98 US. 145), stated:

Laws are made for the Government of actions and while they cannot interfere with mere religious belief and opinions, they may, with practices.

In State of Bombay v. Narasu Appa Mah : AIR1952Bom84 , Chagla, C.J. observed:

Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole.

11. Rule 174 at page 68 of the Travancore-Cochin Police Manual Vol. I enjoins:

174. None can grow beard without the permission of the District Superintendent of Police. This covers all pilgrimage, vows, act.

Persons desiring to go to any place of pilgrimage should apply one month in advance to the District Superintendent of Police and only if permission is granted, he can go.

Sub-section (3) of Section 70 of the Kerala Police Act, 1960 preserves all rules made and orders issued under the Travancore-Cochin Police Act 1951 under its deeming provision. As per Section 17 of the Kerala Police Act every Police Officer not on leave or under suspension shall be considered to be always on duty and may at any time be employed as Police Officer in any part of the State. Rule 10 of the Kerala Police Drill Manual requires that Police Personnel should have their 'face and neck clean and shaven'. The Standing Orders for Armed Police Battalions published as Detachable Supplement to Kerala Police Gazette No. 40, dated 10th October, 1958, provides at page 52 that No one shall grow a beard without the previous permission of the Commandant.'

12. The Police Drill Manual published by the Bureau of Police Research and Development, Ministry of Home Affairs, Government of India, New Delhi, requires Police Personnel to have 'face and neck clean and shaven'. In the Police Planning by O.W. Wilson, Second Edition, it is stated at page 352:

Members shall be neat and clean in appearance when in public whether in or out of uniform and whether on or off duty. They shall bathe regularly, shave once each day, and keep their hair trimmed and fingernails clean and neat. Officers in uniform shall not carry an umbrella or cumbersome bundles, nor shall they walk or stand with hand in pocket.

I have already found that growing beard or dyeing hair is not an essential part of the practice of Islamic religion. There is nothing in Article 25 of the Constitution to desist the State from restricting or preventing the non-essential practices of religion, the right to profess, practice and propagate religion being subject to public order, morality and health. The Police Standing Orders referred to above requiring Police Personnel to have their face and neck clean and shaven are perfectly valid in law.

13. In the counter affidavit dated 4th February 1985 filed on behalf of the respondents it is stated at page 2, paragraph 5: -

5. The Police has a secular image and denominational differences cannot exist, more so in the present day context where national integration and secular concepts are foremost. If the petitioner's prayer is granted, it will open the floodgates of indiscipline and several others are likely to come forward with requests that will be demoralizing.

The petitioner himself had no beard for over 17 years of his service in the Police Department;

14. In P. Balakotaiah v. Union of India and Ors. : [1958]1SCR1052 , it is stated at page 238:

The appellants have no doubt a fundamental right to form associations under Article 19(1)(c) but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of Article 311 arises.

15. The petitioner has to abide by the discipline of the service of which he is a member and especially so in the case of Police Service. There is no infringement of the fundamental rights of the petitioner under Article 25 of the Constitution in declining him permission to grow beard on a permanent basis, while in the Police Service.

I do not see any merit in this original petition. It is accordingly dismissed. There will however be no order as to costs. ed.

Counsel for the petitioner prays for two weeks' time for the implementation of this judgment. This prayer is opposed by the Director of Prosecutions, appearing on behalf of the respondents.

Since there was a stay of the impugned orders, pending disposal of this original petition, the judgment in this original petition will be implemented only after fifteen days.


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