COVER PAGE

Title of the issue: Allowing beard by a person belonging to Muslim religion in

security forces.
Name (Student): Utkarsh kumar Srivastava
Course: Moot court exercise and Internship. (Clinical course IV)
PRN NO.: 10010224038
Batch: 2010-15

I. Summary of Meeting with Client.

Recently, rules have been changed in security forces, including state police force and the central
armed forces, allowing beard by a person belonging to Muslim religion. Earlier, it was
allowed for a person belonging to Sikh community only. I want to challenge this amended
rule.
There are two issues here. One, for the Sikhs, kes, unshorn hair, has very much become a part of
their accepted identity. It is also one of the five basic features which determine a khalsa -kachhaa, kanghaa, karaa, kes and kirpan. Two, the stare decisis principle represents judicial
conservatism--it won't take away any rights of Sikh boys already enshrined in law and in
practice, but it will hesitate to add new rights to newer groups on that basis.

II. Facts in detail.

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, 2003 and was promoted as
Head-constable on 3rd April, 2004. From February 2007 onwards he started growing beard and
submitted a representation Ext. P 1 dated 10th February, 2007 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, 2008 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, 2009 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.

III. Applicable Law, including judgements

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. Subclause (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.
Fundamental rights lie only against the state and its functionaries, not against private citizens or
institutions. On the other hand, a private un-aided minority institutes has the fundamental right
under Article 30 -- "the right of minorities to establish and administer educational institutions"
The employee is governed by the Central/Industrial Security Force Act, 1968 (hereinafter called
the Act) is not a matter in dispute. It also is not in dispute that there are no provisions in the Act
laying down that members of the Security Force cannot keep a beard. Section 22 of the Act
empowers the Central Government, by notification in the Official Gazette, to make rules for
carrying out the purpose of the Act. In exercise of those powers, Central Industrial Security
Force Rules, 1969 have been framed.

JUDGEMENTS
In case of Airmen Mohammad Zubair and Aftab Ahmad Ansri vs. Indian Air Force (IAF),
Indian Supreme Court has asked Union government to clarify within a fortnight that if Muslims
working with IAF can grow their beards or not?
"The government is bound to respect religious freedom.... But there is an overdriving concept of
public interest when one is working in the armed forces. Can one sport a beard as an act of
distinctiveness when the person is expected to work in an environment of cohesiveness? The
pursuit of faith is not abrogated, but standing out is what concerns the forces."

In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha

Swamiar , 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.
In Ratilal v. State of Bombay it is stated at page 391:
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.

IV. Action required to be taken.

A writ petition will be filed in the High Court under Article 226 of Indian Constitution.
Power of High Courts to issue certain writs1. Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose
(2) The power conferred by clause (1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without
(a) Furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause (2 ) of Article 32.

V. Probable legal solution to the matter.

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."

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.