Republic Day Special: The Case Where It All Started

JUDEGMENT SUMMARY:
Bijoe Emmanuel & Ors. v. State of Kerela & Ors.

DATE OF JUDGEMENT:
11th August 1986

JUDGES:
Justice O C Reddy

PARTIES:
Bijoe Emmanuel & Ors. (Plaintiff)
State of Kerela & Ors. (Respondent)

SUBJECT

The Supreme Court, in this case held that singing of National Anthem can be exempted on the grounds of genuine conscientious religious objection. An earlier appeal before the Kerala High had been dismissed and hence the petitioners had approached the Supreme Court.

AN OVERVIEW

1. The petitioners- Bijoe. Binu Mol and Bindu Emmanuel belonged to a sect called Jehvovah’s Witness. When the National Anthem was sung during the morning assembly, they stood respectfully but did not sing along. They were expelled after being discovered. The children's father requested the to Headmistress allow the children to attend school until they received a government order/decision in the matter. The Headmistress stated that she was unable to do so.
2. The tenets of Jehovah's Witnesses demand that only one God be worshipped and that no other gods be worshipped. According to the petitioners, singing the National Anthem involved worshipping a God other than Jehovah, so they requested that they be barred from chanting the National Anthem. TheCourt of Appeals of Ontario stated that this sect believed that singing the national anthem are both contrary to and forbidden by their religious Scripture as the anthem is incompatible with their belief and hope in the early coming of the new world.
3. The three children had filled a writ petition in the Kerela High Court, requesting that the authorities refrain from preventing them from attending school. The writ petition was initially dismissed by a single learned judge, and the children's prayer was also dismissed by the division bench which were decisions based on the Kerala Education Act 1959.
4. The Kerala education authorities then followed two circulars which laid that the National Anthem must be sung by all students and did not stress importance on the religious beliefs in this regard.

IMPORTANT PROVISIONS

Constitution of India:

• Article 19 (1) (a)-Every citizen of India has the freedom to speech and expression
• Article 25 (1)- All persons have an equal right to freedom of conscience and the freedom to profess, practice, and propagate any religion, subject to public order, morality, and health, as well as the other provisions of Part III of the Constitution.
• Article 51(A)- Every Indian citizen has the duty to uphold the Constitution and respect its ideals and institutions, as well as the national flag and the national anthem.
• Prevention of Insult to National Honour Act, 1960
• Section 3- Any person intentionally preventing from singing National Anthem of India or causing disturbance to assembly engaged in singing the same, shall be punished with imprisonment for a term extending to three years or with fine or even with both.
• Kerela Education Act 1959
• Section 36- The government is enabled to make rules for the purpose of carrying out the provisions of the Act, including standards of education and courses of study.

ISSUES

The major issues before the Supreme Court:

• Whether the expulsion of students from the school by the Kerala education authorities for refusal to sing National Anthem due genuine conscientious religious objection is consistent with the rights guaranteed by Article 19(1)(a) and 25 of the Constitution or not?
• Whether such expulsion justifiable Prevention of Insult to National Honour Act, 1960 and Kerela Education Act 1959?

ANALYSIS OF THE JUDGEMENT

1. While Article 19 (1)(a) of the Constitution provides the freedom of Speech and expression, Article 19 (2) enlists the condition when this right can be restricted lawfully such as “decency, morality and defamation”, security, integrity, sovereignty and public order of the country. Likewise,Article 25 (1) guarantees citizen freedom of conscience and the freedom to profess, practice, and propagate any religion with restriction subjected such as to public order, morality, and health, as well as the other provisions of Part III. It can however be noted that the expulsion of these students did not fall under the enlisted conditions for reasonable restrictions.
2. It again must be noted that no legislation in India makes it obligatory to sing the National Anthem. Article 51-A (a) obliges citizen to respect the National Anthem. The students stood in attention when the National Anthem is sung to show respect and mere dejection from singing cannot be viewed as disrespect to the National Anthem.
3. The circulars followed by the Kerela Schools were issued by the Director of Public Instructions which was an executive body. The circular was a departmental instruction and did not have statutory force. In Kharak Singh v. State of U.P, it was stated that police regulation had no such statutory basis and were merely departmental instructions which could only guide police officer.
4. Further the Kerela Education Act in Chapter VIII rule 8 provided instruction that programme implemented in the schools should not hamper any student’s social or religious susceptibilities. The circular trying to compel the children to sing National Anthem regardless of their religious belief violated this moral instruction.
5. Regarding Section 3 of the Prevention of Insult to National Honour Act 1960, when the person does not themselves participate in singing, they do not prevent National Anthem from being sung and neither do they cause disturbance in any form to the assembly which is engaged in singing National Anthem. So not singing the National Anthem does not constitute as offence under this Act

CONCLUSION

Respecting the National Anthem and National Flag is fundamental duty of every citizen which can not be compromised. On the other hand, the ruling that the expulsion of the students was violation of their fundamental rightssafeguards the freedom of the minorities. The case resolved the conflict between religious beliefs and sovereignty of the country granting democracy in true sense. It provides a precedent to the free speech in India.

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