Currently we are reading and watching the ‘hijab row’. Girls are protesting for this right and government is determined not to allow hijab in educational Institution. In pursuance of this issue, a writ petition was also filed in Karnataka High court but the high court decided that hijab is not essential practice of Islam and therefore it is not a fundamental right under Part III.
One of such cases also emerged in India, when the questions of educational institution, religion, fundamental right took the place in national debate. This was the case of three school students who did not sing national anthem due to their faith, inspite of the circulars of Kerala government in this regard.
The case of Bijoe Emmanuel
(Please note that the wording and reasoning of this case is taken from the judgment of court. Except the introductory paragraph, the lawmatics does not claim the expression of these thoughts.)
As per the facts of the case, the three children, Bijoe, Binu Mol and Bindu Emmanuel, were the faithful of Jehovah’s Witnesses. They attend school Daily, during the morning Assembly, when the National Anthem ‘Jana Gana Mana’ was sung, they used to stand respectfully but they did not sing. They did not sing because, according to them, it was against the tenets of their religious faith-not the words or the thoughts of the Anthem but the singing of it.
This they and before them their elder sisters who attended the same school earlier had done all these several years. No one bothered, No one worried. No one thought it disrespectful or unpatriotic. The children were left in peace and to their beliefs.
That was until July, 1985, when some ‘patriotic’ gentleman took notice. The gentleman thought it was unpatriotic of the children not to sing the National Anthem. 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 Commission reported that the children were ‘law- abiding’ and that they showed no disrespect to the National Anthem.
Indeed, it was nobody’s case, that the children were other than well-behaved or that they had ever behaved disrespectfully when the National Anthem was sung. They have always stood up in respectful silence. But these matters of conscience, which though better left alone, are sensitive and emotionally evocative.
So, under the instructions of Deputy Inspector of Schools, the Head Mistress 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 Head Mistress expressed her helplessness in the matter.
The case in High court
Finally, the children filed a Writ Petition in the High Court seeking an order restraining the authorities from preventing them from attending School. First a learned single judge and then a Division Bench rejected the prayer of the children. Therefore, the children had no option except to file petition in supreme court, so, they filed special leave under Art. 136 of the Constitution.
Case in Supreme Court
The objection of the petitioners was not to the language or the sentiments of the National Anthem: they do not sing the National Anthem wherever, ‘Jana Gana Mana’ in India, ‘God save the Queen’ in Britain, the Star-spangled banner in the United States and so on.
In their words in the Writ Petition they said, “The students who are Witnesses do not sing the Anthem though they stand up on such occasions to show their respect to the National Anthem. They desist from actual singing only because of their honest belief and conviction that their religion does not permit them to join any rituals except it be in their prayers to Jehovah their God. “
Question before the supreme court
Thus, the question before the court was that, Are the faith of Jehovah’s witnesses entitled to be protected by the Constitution?
In other terms, whether the ban imposed by the Kerala education authorities against silence when the National Anthem is sung on pain of expulsion from the school is consistent with the rights guaranteed by Arts. 19(1)(a) and 25 of the Constitution?
Silence during National Anthem
The court noticed that there were no provisions of law which obliged anyone to sing the National Anthem nor did the court agreed that it was disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing.
Article 19(1)(a) and Article 19(2)
Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and expression, but Article 19(2) provides that nothing in Art. 19(1)(a) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
Art. 25(1) guarantees to all persons, freedom of conscience and the right freely to profess, practise and propagate religion, subject to order, morality and health and to the other provisions of Part III of the Constitution.
National Honour Act, 1971
The Prevention of Insults to National Honour Act was enacted in 1971. While s. 2 deals with insult to the Indian National Flag and the Constitution of India, s. 3 deals with the National Anthem and enacts,
“Whoever, intentionally prevents the singing of the National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which extend to three years or with fine, or with both.”
Art. 51-A(a) of the Constitution enjoins a duty on every citizen of India “to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.”
The court said that Proper respect was shown to the National Anthem by standing up when the National Anthem sung. It would not be right to say that disrespect was shown by not joining in the singing.
Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in s. 3 of the Prevention of Insults to National Honour Act.
The circular in pursuance of Kerala Education Act
Section 36 of The Kerala Education Act enabled the Government to make rules for the purpose of carrying into effect the provisions of the Act and in particular to provide for standards of education and courses of study. The Kerala Education Rules was made pursuant to the powers conferred by the Act.
Chapter VIII of the Rules provides for the organisation of instruction and progress of pupils. Rule 8 of Chapter VIII provides for moral instruction and expressly said,
“Moral instruction should form a definite programme in every school but it should in no way wound the social or religious susceptibilities of the peoples generally.”
The rule goes on to say that ‘the components of a high character’ should be impressed upon the pupils. One of the components is stated to be ‘love of one’s country’.
Chapter IX deals with discipline. Rule 6 of Chapter IX provides for the censure, suspension or dismissal of a pupil found guilty of deliberate in-subordination, mischief, fraud, mal-practice in examinations, conduct likely to cause unwholesome influence on other pupils etc.
The expulsion of the students
It was not suggested to the court that the appellants had ever been found guilty of misconduct such as that described in Chapter IX, Rule 6. On the other hand, the report of the Commission, is to the effect that the children have always been well-behaved, law-abiding and respectful.
The Kerala Education Authorities rely upon two circulars of September 1961 and February 1970 issued by the Director of Public Instruction, Kerala.
The first of these circulars is said to be a Code of Conduct for Teachers and pupils and stresses the importance of moral and spiritual values. Several generalisations have been made and under the head patriotism it is mentioned,
1. Environment should be created in the school to develop the right kind of patriotisms in the children. Neither religion nor party nor anything of this kind should stand against one’s love of the country.
2. For national integration, the basis must be the school.
3. National Anthem. As a rule, the whole school should participate in the singing of the National Anthem.”
In the second circular also instructions of a general nature are given and para 2 of the circular, follows:
“It is compulsory that all schools shall have the morning Assembly every day before actual instruction begins. The whole school with all the pupils and teachers shall be gathered for the Assembly. After the singing of the National Anthem the whole school shall, in one voice, take the National Pledge before marching back to the classes.”
The circulars had no legal sanction behind them in the sense that they were not issued under the authority of any statute, the court also noticed that the circulars do not oblige each and every pupil to join in the singing even if he has any conscientious objection based on his religious faith, nor is any penalty attached to not joining the singing.
On the other hand, one of the circulars (the first one) very rightly emphasise the importance of religious tolerance. It is said there, “All religions should be equally respected.
The court said that if the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection, then such compulsion would clearly contravene the rights guaranteed by Art. 19(1)(a) and Art. 25(1).
Legality of the Circulars
The two circulars on which the department placed reliance in the present case had no statutory basis and were mere departmental instructions. They cannot, therefore, as the court said, form the foundation of any action aimed at denying to citizen’s Fundamental Right under Art. 19(1)(a).
Further The court denied to accept that it is not possible to hold that the two circulars were issued ‘in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence’ and if not so issued, they cannot again be invoked to deny a citizen’s Fundamental Right under Art. 19(1)(a).
Decision of the Court
Thus, the court held that the expulsion of the children from the school not joining the singing of the National Anthem though they respectfully stood up in silence when the Anthem was sung was violative of Art. 19(1)(a).
The court further said that,
“We are satisfied, in the present case, that the expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the national anthem in the morning assembly though they do stand-up respectfully when the anthem is sung, is a violation of their fundamental right to freedom of conscience and freely to profess, practice and propagate religion.
We, therefore, find that the Fundamental Rights of the appellants under Art. 19(1)(a) and 25(1) have been infringed and they are entitled to be protected. We allow the appeal, set aside the judgment of the High Court and direct the respondent authorities to re-admit the children into the school, to permit them to pursue their studies without hindrance and to facilitate the pursuit of their studies by giving them the necessary facilities.
We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.”
Bijoe Emmanuel & Ors vs State Of Kerala & Ors: 1987 AIR 748, 1986 SCR (3) 518