BIJOE EMMANUEL V. STATE OF KERALA (1986) 3 SCC 615

BIJOE EMMANUEL V. STATE OF KERALA 

(1986) 3 SCC 615

 

FACTS

Here, the three child-appellants, Bijoe, Binu Mol and Bindu Emmanuel, are the faithful of Jehovah’s Witnesses. They attend school. Daily, during the morning Assembly, when the National Anthem ‘Jana Gana Mana’ is sung, they stand respectfully but they do not sing. They do not sing because, according to them, it is against the tenets of their religious faith - not the words or the thoughts of the anthem but the singing of it. Noone bothered them until a patriotic gentleman took notice. He happened to be a Member of the Legislative Assembly. So, he put a question in the Assembly. A Commission was appointed to enquire and report. The report mentioned that the children were law abiding and showed no disrespect to the National Anthem. But under the instructions of the Deputy Inspector of Schools, the Headmistress expelled the children from the school from July 26, 1985. The father of the children made representations requesting that his children may be permitted to attend the school pending orders from the government. The Headmistress expressed her helplessness in the matter. Finally the children filed a writ petition in the High Court seeking an order restraining the authorities from preventing them from attending school. 

 

ISSUE

The issue involved in the current case pertained to whether the expulsion of the children due to their non participation in singing the National Anthem was a violation of their Fundamental Rights

 

JUDGEMENT AND ANALYSIS

1. This hon'ble court observed that Jehovah's witnesses constitute a religious denomination. Compelling a student belonging to the Jehovah's Witnesses to join in the singing of National Anthem despite his "genuine, conscientious religious objection", would contravene the rights guaranteed by Articles 19(a) and 25(1). The court has noted that Jehovah’s witnesses wherever they are (England, USA) do not sing the National Anthem, though they show respect to it by standing up whenever it is sung. They truly and conscientiously believe that their religion does not permit the singing of the National Anthem. It was further observed that  “ ...the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.”
2. The court observed that a government circular having no legal sanction violates the Article 19(1)(a) if it forces the individual to participate in the singing of the National Anthem even if it is against his genuine religious objection.
3. Article 51A(a) enjoins a duty on Indian citizens to show respect to the national anthem. However, so far no law has been made obliging anyone to sing the anthem. A person shows no disrespect to the National Anthem if he stands up respectfully when the National Anthem is sung but does not join in the singing.
4. Hence this court held that the expulsion of three friends from the school for their consciously held religious faith of not singing the National Anthem, though they stood there respectfully is a violation of their fundamental right. 

 

CASE LAWS REFERRED

1. In Kharak Singh v. State of U.P.  the question arose whether a police regulation which was a mere departmental instruction, having no statutory basis, could be said to be a law for the purpose of Article 19(2) to (6). The Constitution Bench answered the question in the negative and said: “Though learned counsel for the respondent started by attempting such a justification by invoking Section 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Chapter XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be “a law” which the State is entitled to make under the relevant clauses (2) to (6) of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Article 19(1), nor would the same be “a procedure established by law” within Article 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations.”
2. In Kameshwar Prasad v. State of Bihar, a Constitution Bench of the Court had to consider the validity of Rule 4-A of the Bihar Government Servants Conduct Rules which prohibited any form of demonstration even if such demonstration was innocent and incapable of causing a breach of public tranquillity.