Zahiroddin Shamsoddin Bedade v. State Of Maharashtra And Others

Naresh H. Patil, J.:— Rule returnable forthwith. By consent heard finally.

2. The petitioner challenges validity of the order passed on 9th October, 2012 by the In-charge Commandant, State Reserve Police Force, Group No. 3, Jalna, cancelling permission for keeping beard. The petitioner submits that he is a Muslim and professes Islam religion. He was appointed as a Police Constable in the State Reserve Police Force on 16-1-2008. At present he is discharging his duties as Police Constable in the State Reserve Police Force Group No. 3, Jalna. He had applied for keeping beard on 28th February, 2012. It is contended that initially respondent No. 3 - Commandant, SRPF, Jalna granted permission to keep beard in view of letter dated 8-3-1989 of Government of India. By the impugned order dated 9th October, 2012 the respondent No. 3 cancelled the Order dated 7-5-2012 under which the petitioner was permitted to keep beard. The petitioner was given opportunity to apply for keeping beard for a temporary period during specific significant month.

3. The petitioner's contention is that in accordance with Islam religion and Holy Quran a man could keep beard. Being a follower of Islam religion the petitioner is entitled to keep beard on religious grounds. On petitioner's application permission was accordingly granted to him. Cancellation of the said permission is unreasonable and violative of fundamental right of the petitioner guaranteed under Articles 25 and 26 of the Constitution of India. The plea of the petitioner is that persons working in the force belonging to Sikh religion are permitted to keep beard. On the same lines, the petitioner be allowed to keep beard. The petitioner seeks suitable directions to the respondents accordingly.

4. Consequent to the notice issued to the respondent Nos. 1 and 3 an affidavit-in-reply has been filed by respondent No. 3 through Santosh Jagannathrao Joshi, working as Police Wireless Inspector (Engineering) in the office of Commandant, S.R.P.F, Group No. 3., Jalna. The deponent contends that the petitioner's services are governed under the rules and regulations of the Bombay Police Manual 1951 which does not provide the petitioner to keep beard permanently throughout the tenure of his service. It is contended that the petitioner is part of police force and the orders/circulars issued by the Home Department and the Director General of Police of the State are binding on him regardless from which community the petitioner belongs to. The deponent has produced certain orders issued in this regard by the Home Department and the Director General of Police. In paragraphs 6 and 7 the deponent contends as under:—

“6. With reference to para No. 6 of the Writ Petition I say and submit that, this respondent most respectfully say and submit that, the order dated 7-5-2012 is cancelled by the order dated 9-10-2012 served to the petitioner which is true and correct, as the relevant documents and orders pertaining to the permission to keep beard were not available with this office in the month of May, 2012. After that in the month of October, 2012 the relevant orders are received from old office record and thereafter the order dated 9-10-2012 is given to the petitioner.

7. With reference to para No. 7 of the Writ Petition I say and submit that, vide the various official orders and guidelines of Home Department Maharashtra State and DGP M.S Mumbai, the permission for keeping beard for temporary period is allowed and not up to the complete tenure of the petitioner's service.”

5. The learned counsel appearing for the petitioner submits that in view of provisions of Articles 14 and 25 of the Constitution of India the petitioner has a fundamental right to keep beard being a person professing Islam religion. Right of freedom granted to the petitioner cannot be curtailed under the orders passed by the respondent No. 3. The impugned order passed by respondent No. 3 violates right to freedom of religion guaranteed under Article 25 of the Constitution of India. The learned counsel has placed reliance on an order passed by the Delhi High Court in C.W.P No. 7263 of 1999, Haider Ali v. Union of India. The Delhi High Court had observed that the instructions issued by the Government of India, which are not controverted by the respondents, permit member of force belonging to Muslim community of keeping beard on religious ground.

6. The learned counsel has referred to reported judgment in Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615 : AIR 1987 SC 748 and Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166.

7. The learned Assistant Government Pleader; Smt. A.V Gondhalekar, submitted that the petitioner is a member of disciplined force - SRPF. He is bound by the service conditions and the executive orders/circulars/instructions issued by the Home Department of the State and higher officers of the Department. Though by a communication dated 7th May, 2012 permission was granted to the petitioner for keeping beard on certain conditions but by a communication dated 9th October, 2012, after considering the various orders/circulars issued by the Home Department and the Police Department and the policy adopted in the State, the said permission was cancelled. The petitioner was given opportunity to apply for keeping beard for a temporary period. In the facts of the case, the learned Assistant Government Pleader submits that right guaranteed under Article 25 of the Constitution is not violated. The said right guaranteed under Articles 25 and 26 is subject to certain restrictions as defined in the said provisions. The learned Assistant Government Pleader, on instructions, submits that considering the fact that at times police personnel discharging duties in the force are deputed at sensitive religious places and for controlling the communal violence. Considering various situations, exigencies and circumstances a member of the force has to follow particular discipline and considering this aspect of the matter, the petitioner was denied permission to keep beard permanently.

8. We have perused the record placed before us, the reply filed by the State, the submissions advanced and the judgments cited before us.

9. Articles 25 and 26 of the Constitution of India read thus:—

“25. Freedom of conscience and free profession, practice and propagation of religion.— (1) Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.— The wearing and carrying of Kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.— In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jalna or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

26. Freedom to manage religious affairs.— Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.”

10. We agree with the submissions advanced on behalf of the State that police force has to be a disciplined force. Being a law enforcing agency, it is necessary that, such force must have secular image which strengthens the concept of national integration. In situation like communal riots posting at places of worship, sensitive areas member of the disciplined force has to discharge his duties. In such situation identity of the members of the force on religious denomination is not advisable to be projected. In the present day situation considering the peculiar challenges faced by the disciplined police force these realities of life cannot be ignored and lightly brushed aside. It is obvious that, the members of law enforcing agencies, police force are entitled to protection of fundamental rights. Their religious beliefs, sentiments, customs are to be respected.

11. The learned counsel for the petitioner could not place before us any piece of evidence demonstrating that keeping beard is a fundamental tenet of Islam or the right of the petitioner to keep beard having any basis under any statutory legislation or guidelines of binding nature.

12. The scheme of Article 25 of the Constitution does not confer absolute right in this regard. Rights guaranteed under Articles 25 and 26 have in-built restrictions. The petitioner's stand is based on assertion of existence of religious practice to keep beard. All rights have to be viewed in the context and the letter and spirit in which they were framed under the Constitution.

13. We have perused the orders/circulars issued by the State in this regard which clearly indicate that the petitioner in accordance with his religious practice is entitled to keep beard in specific months for a temporary period under permission granted by the concerned authorities. The State of Maharashtra has adopted this policy which is in clear terms supported by way of affidavit-in-reply and the supporting documents placed on record.

14. In the case of K.S Muhammed Kutty v. Inspector General of Police, Trivandrum, 1987 Lab.I.C 1278 a Division Bench of Kerala High Court, observed in paragraphs 7 and 8 as under:—

“7. 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 SC 1402 it as held:

“…. the word “religion” has not been defined in the Constitution, and it is term which is hardly susceptible of any rigid definition Even practices though religious, may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself'.

In Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay ;, AIR 1962 SC 853, Dasgupta, J. said:

“What constitutes an essential part of a religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion.”

Having regard to the material available and the experiences of life, we agree with the view expressed in Mohammed Fasi's case, (1985 Ker LT 185), 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 B. Mokhthar Pasha v. B.H.E.L Reported in (1986) 2 Mad LJ 221 (not reported in law reports - a short note appears in Lex Et Juris; law Magazine September, 1986 issue).

8. The role of Police has to be appreciated in judging the restrictions governing the force. Law enforcement rests appreciably on the 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 common sense view and be actuated by considerations of practical necessary” (Adelaide Co. v. Common Wealth, 67 CLR 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.”

15. In the case of Fathema Hussain Sayed v. Bharat Education Society, AIR 2003 Bombay 75, a Division Bench of Bombay High Court considered the provisions of Article 25 of the Constitution of India in the facts of the said case, and observed in paragraphs 6 and 7 as under:—

“6. By asking petitioner who is student in class VIth standard of respondent No. 2 school to maintain the dress code prescribed by the school, how can it be said that the petitioner's fundamental right of freedom of conscience and free profession, practice and propagation of religion is violated. Article 25 guarantees that every person in India shall have freedom of conscience and shall have the right to profess, practice and propagate religion, subject to restrictions imposed by the State on the grounds of: (i) public order, morality and health; (ii) other provisions of the Constitution; (iii) regulation of non-religious activity associated with religious practice; (iv) social welfare and reform etc. There does not seem to be such established practice and profession of the Islam religion from covering their heads by the girls studying in all girls school. The learned counsel for the petitioner however sought to place reliance upon verse 31 of Chapter 24-64 of Holy Quran (Quran-E-Majid). Verse 31 reads thus—

“31. And say to the believing women that they cast down their looks and guard their private parts and not display their ornaments except what appears thereof, and let them wear their head-coverings over their bosoms, and not display their ornaments except to their husbands or their fathers, or the fathers of their husbands, or their sons, or the sons of their husbands, or their brothers, or their brothers' sons, or their sisters' sons, or their women, or those whom their right hands possess, or the male servants not having need (of women), or the children who have not attained knowledge of what is hidden of women; and let them not strike their feet so that what they hide of their ornaments may be known; and turn to Allah all of you. O believers; so that you may be successful.”

7. A girl student not wearing the headscarf or head covering studying in exclusive girls section cannot be said to in any manner acting inconsistent with the aforesaid verse 31 or violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head-covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear headscarf in the school.”

16. In the case of Bijoe Emmanuel (cited supra) the issue was regarding non-attending in singing National Anthem. In the case of Kameshwar Prasad (Cited supra) the issue was relating to rights of government servants to participate in demonstration and resort to any form of strike in connection with any matter pertaining to his conditions of service. In the contest of the facts of the said case, the Apex Court considered the provisions of Articles 19 and 25 of the Constitution of India.

17. The judgment delivered by the Delhi High Court in the case of Haider Ali (cited supra) would not be helpful to the petitioner.

18. In view of the stand adopted by the respondent-State, the decision reached by the Home Department and the Police Department we are of the considered view that the impugned order passed by the respondent No. 3 does not interfere or violate the fundamental right guaranteed to the petitioner under Articles 25 and 26 of the Constitution of India. We reiterate that a citizen is entitled to right of freedom of religion. The Constitution provides right of professing religion but they are subject to certain restrictions which are clearly demarcated under the provision of the Constitutional scheme.

19. There is no merit in the petition. It is accordingly dismissed. Rule discharged. Interim relief stands vacated.

20. After pronouncement of the judgment, the learned counsel for the petitioner prays for continuation of the interim relief as the petitioner intends to approach the Apex Court. The learned Assistant Government Pleader opposes the prayer. In the facts of the case, we are not convinced to continue the interim protection. The request is rejected.

Petition dismissed.