The Judgment of the Court was delivered by
Sankaran Nair, J.:— This writ petition comes before us, on reference by a learned Single Jndge.
2. The petitioner professes the faith of Islam; by profession he is a police man. The rules of his service prohibit the wearing of a beard. For two decades, he lived under it without demur. Realisation then dawned on him, that to live without a beard was contrary to the tenets of his faith. We do not know when. He would only say, that by Ext. P 1 dated 19-11-1986, he was directed by the 3rd respondent to report for duty cleanly shaven.
3. By Ext. P 2, he told the respondent that wearing a beard was an article of faith, that it was not subject to discipline and that:
“Nobody can compel me to swerve from the Islamic faith”.
4. He invited the attention of his superior to Bijoe Emmanual v. State (1986 KLT 1037) to say that he had a right to wear a beard. The 3rd respondent obviously did not share the views of the petitioner, and issued Ext. P 3. Apparently, the petitioner turned the Nelson's eye on Ext. P 3, and did not respond. By Ext. P 4, the 3rd respondent directed the petitioner to report for duty, calling attention to Ss. 14 and 17 of the Kerala Police Act. The petitioner left matter at that, as far as the department was concerned, and filed the writ petition. Counsel for petitioner urged three propositions to contend that the directions in Exts. P 1 and P 4 were illegal. He submits that wearing a beard is a basic tenet of Islam, that Article 25 of the Constitution of India guarantees freedom of conscience, profession, practice and propagation of religion which according to him includes the wearing of beard and thirdly, that the law declared by the Supreme Court of India in Bijoe Emmanuel's case sanctions practices such as this. The decision to the contra, in Mohammed Fast v. Superintendent of Police (1985 KLT 185), is no longer goad law, according to counsel.
5. According to the petitioner, Article 25 confers an absolute right in this regard. We cannot assent to this view. The opening words of the Article recite that the right of freedom of conscience and free profession, practice and propagation of religion is subject to public order, morality and other provisions in Part III, including Article 19(2) to (6) empowering restrictions.
6. In Narendra Prasad v. State of Gujarat ((1975) 1 SCC 11 : AIR 1974 SC 2098), the Supreme Court said:
“The founders of the Constitution left no doubt in expressly subjecting Art. 25 to other provisions of Part III”.
7. In Ratilal Nathalal…Applicant v. Commissioner Of Bombay…. (AIR 1954 SC 388), referring to Article 25, it is stated:
“This is subject, in every case, to public order, health and morality reserves the States power to make laws providing for social reform and social welfare even though they might interfere with religious practices”
8. Similarly, in The State Of Bombay v. Narasu Appa Mali…Accused. (AIR 1952 Bombay 84), Chagla, C.J stated the law:
“A sharp distinction most be drawn between religions 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”.
(emphasis supplied)
9. A claim to sustain ‘Sati’ as a religious practice was repelled by the Supreme Court. Alike claim regarding slaughter of cow, was also rejected by the Supreme Court in H.M Quareshi v. State of Bihar (AIR 1958 S.C 731). Restrictions are imposed, for reasons as important as the preservation of the rights themselves. We cannot read an article in isolation, missing the horizons and philosophy of the Constitution, balancing myriad values. A myopic view, missing the magnificent visions of the Constitution is not justified. Article 51A, for instance refers to the duty to promote harmony and the spirit of common brotherhood amongst all people, transcending religious, linguistic and regional or sectional diversities, and to value and preserve the rich heritage of our composite culture. India has a rich heritage of culture and tradition, drawing sustenance and inspiration from the great religions of the world like Islam, Christianity, Budhism and Hinduism. The winds of cultural renaissance that have blown over the ages, over the continents have pervaded the culture and tradition of India. The values pervading the Constitution are as precious, as the freedoms it guarantees. The contention of the petitioner that Article 25 guarantees him an unqualified right, is not supported by principle or precedent. All rights have to be viewed in the larger context, of content and restrictions. In Prakash Chandra v. Commissioner & Secretary to Government of Kerala (1985 Supp SCC 144 : AIR 1986 S.C 687) the Supreme Court outlined the background in which restrictions have to be viewed. Sabyasachi Mukharji, J. for the court said:
“We must remember that observance of written law for the protection of the individual, is normally the high duty of public officials, but in all circumstances not the highest. The law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority. As has been set out by Thomas Jefferson “To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrficing the end to the means” (Thomas Jefferson, Writings (Washington ed). v. 542-545 and the Constitution Between Friends by Louis Fisher 47)”.
10. In the words of Marshal, C.J, “the Constitution is intended to endure for ages to come, and consequently to be adopted to the varying crisis of human affairs”. Oliver Wendel Holmes said:
“The law embodies the story of a nation's development through many centuries and it cannot be dealt with as if it contained only the axioms and corollary of a book of mathe matics. In order to know what it is, we most know what it has been and what it tends to become”.
(Common Law)
11. The Constitution must be interpreted in this perspective.
12. The contention of the petitioner that the wearing of beard is an essential tenet of Islam, cannot be accepted. Apart from casual references to the edicts of the Prophet, no material is placed before us to substantiate the plea. No authentic texts, nor judicial pronouncemsnts are referred to. The petitioner refers to Ext. P 5, in which an officer of the Air Head Quarters says that “according to Muslim Law, a true Muslim must keep a beard”. We are not persuaded to regard this enunciation as authority. Nor can we relegate the determination to such agencies. This is the function of the court. la Mohammed Fast's case, the learned Single Judge examined the question in depth and dimension. The ‘Hadiths’ and other texts were noticed, and it was held that these practices,
“are only ‘sunnath’ (optional) not ‘farz’ (obligatory)”. — para 3.
13. It was also noticed that high dignitaries held in esteem in public life like Judges of the Supreme Court, President and Vice-Presidents, professing the faith of Islam did not wear a beard. The President of a neighbouring theocratic Islamic State, also does not wear a beard. Beard is no sine-qua-nonofatrue believer of Islam. On appeal, a Division Bench of this court affirmed the judgment (W.A 130/85). We are told that a Special Leave Petition was moved before the Supreme Court and was rejected. We are not in a position to ascertain the correctness of this statement.
14. Merely on assertions, the existence of a religious practice cannot be found. Nor can it be assumed, on the basis of literature of dubious authority. The court has to judge the existence or otherwise of a religious practice. In Durgah Committee, Ajmer v. Hussain Ali (AIR 1961 S.C 1402) it was held:
“………the word “religion” has not been defined in the Constitution, and it is a term which is hardly susceptible of any rigid definition Even practices though religious, may have sprang from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself”.
15. In Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay ; (AIR 1962 S.C 853), Dasgupta, J. said:
“What constitutes an essential part of a religion or religions practice has to be decided by the courts with reference to the doctrine of a particular religion”.
16. Having regard to the material available and the experiences of life, we agree with the view expressed in Mohammed Fasi's case, that wearing a beard is not a fundamental tenet of Islam. It cannot be treated as part of the religious faith or belief. For that matter it cannot be treated even as a religious practice of general acceptance. The Madras High Court also has taken a similar view in E. Mokhthal Pasha v. B.H.E.L (not reported in law reports—a short note appears in ‘Lex Et Juris:— Law Magazine September 1986 issue).
17. The role of Police has to be appreciated in judgirg the restrictions governing the force. Law enforcement rests appreciably cm she police. It must have a secular image and cannot lend itself to denominational nuances or overtones, more so, when national integration and secular concepts should be in the forefront. A ‘uniformed force’ which connotes a superior discipline cannot don sectarian appearances as Hindus, Muslims and such like. “The court should take a commonsense view and be actuated by considerations of practical necessity” (Adelaide Co. v. Common Wealth, 67 C.L.R 116— Latham C.J). In situations like communal riots, identifiability of police force in terms of their religious denominations, will defeat the object of policing itself. Likewise, presence of police in places of worship, should occasion arise, will serve no purpose, if the members of the force are identifiable by caste, creed or religion. The realities of life cannot be ignored, nor can one miss the gloss that life has writ on the constitutional clauses.
18. Paragraphs 173 and 174 of the Travancore-Cocbin Police Manual prohibit the wearing of beard except, with permission and except during pilgrimage and vows. These provisions have force of law, under S. 17 of the Kerala Police Act. The Kerala Police Drill Manual, and Standing Orders of the Armed Police published in the Kerala Police Gazette and ‘The Police Drill Manual’ published by the Bureau of Police Research and Development, Ministry of Home affairs, Government of India, also contain similar provisions. Such regulations are seen in rules governing police forces in other countries of the world. These regulations are reasonable, having regard to the objects sought to be achieved.
19. Even on the assumption, that a religious practice, sanctions the wearing of a beard, that would not justify the petitioner's claim, to disregard the Rules of his services, which are in a different realm. The petitioner telescopes one concept into another. As a member of the force, he is subject to its rules validly made within the Constitutional parameters. It is so stated by the Supreme Court in P. Balakotalah v. Union of India (AIR 1958 S.C 232 at 238):
“The appellants have no doubt a fundamental right to form associations under Art. 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 Art. 311 arises”.
20. To the same effect is the decision in Jamna Prasad v. Lachhiram (AIR 1954 S.C 686). In this state of law, petitioner cannot complain that the might of the State has been used against his convictions, at it were, crushirg a butterfly with a hammer.
21. The petitioner states that members of the defence force are allowed to wear a beard. Assuming this is correct, it offers no parallel. The Army does not come in the view of public, nor is the army involved into day-to-day administration of law and order, unlike the Police. The nature of work, climatic conditions in which they work and akin factors may justify the appli cation of a different rule to the defence (we are not called upon to decide this). This could be no standard bearer.
22. Besides, these are matters of policy properly left to the Executive Government. ‘Courts make no laws, they establish no policy, they do not enter the domain of public action (Justice David Joshiah Brewer—see ‘The Supreme Court and Constitutional Democracy’ by John Agresto—Cornell University). To what extent the policy making process should go. and in what manner policy should be shaped, within the permissible Constitutional parameters, are essentially for the Executive Government to decide. Depending on the requirements of the situation, a restriction may extend to total prohibition (see Narendrakumar v. Union of India, A.I.R 1960 S.C 430 and Glass Chatons v. Union of India, AIR 1961 S.C 1514).
23. The further contention that Mohammed Fasi's case (1985 KLT 185) requires reconsideration or is no longer good law in view of the decision in Bijoe's case, does not commend acceptance, nor, do we read Bijoe's case as yeildingany such conclusion. The right claimed in Bijoe's case was found to be an essential part of the religious beliefs of the sect, unlike in Fast's case (1985 KLT 185) and Mohammed Quareshi's case (AIR. 1958 SC. 731). The decision also turned on the fact that the restriction was imposed by a circular or executive order issued by a subordinate officer and not by law. In Fasi's case and in the instant case, the restriction is imposed by ‘law’. A constitutional provision read out of context and missing the scheme and perspective, can lead to results neither intended nor justified by the Constitution. The dangers arising from such interpretations, were highlighted by the Supreme Court in Shamsheer Singh v. State of Punjab ((1974) 2 SCC 831 : AIR 1974 SC. 2192). The court said:
“A coup can be envisioned by an erroneous and literal interpretation of the living words of the organic law we cannot allow a confusion of vision to creep into our Constitu tional interpretation………”
(emphasis supplied)
24. Concepts that took us pages of history and philosophy to build, are expressed in the Constitution. These cannot be eroded by narrow, pedantic or too literal an interpretation, missing the Constitutional philosophy. Words are not crystal transparents. A true constitutional perception is essential in the interpretative process.
25. We have anxiously considered the counter-balancing aspects, the right of the citizen and the power of the State to impose reasonable restrictions in larger public good. The petitioner has no fundamental right in the nature claimed. Nor are the regulations unreasonable in any manner, even assuming there is a right.
26. The Original Petition is without merit, and is accordingly dismissed.
27. Dismissed.