Bijoe Emmanuel v. State of Kerala

One would have thought the issue had been clinched 30 years ago. That was when the Supreme Court (SC) had ruled in favor of three students in Kerala who stood with other schoolmates when they sang the national anthem one July morning in 1985 but refused to sing with them. Their father, V.J. Emmanuel, had told his children, not to salute the flag or sing the anthem because their religious beliefs did not allow them to do so.

The school expelled the children. Emmanuel and his family belonged to a Christian sect called the Jehovah’s Witnesses – moved court. He argued that singing the anthem was an act of unfaithfulness to their God, Jehovah.

Tobias Dias, spokesperson for Jehovah’s Witnesses of India, says that most of the people who belong to Jehovah’s Witnesses do not sing any other Anthem; there is no question of disrespect.[1]

Background of the Case

Three children namely Bijoe, Binu, and Bindu, studying in a school in Ettumanoor near Kottayam, were expelled from school after they refused to sing the national anthem of India. Their father had asked them not to sing the anthem because it was against their religious beliefs in Jehovah’s Witnesses. Through their representative, they filed a writ petition in the High Court of Kerala State, seeking to restrain authorities from preventing their school attendance. They alleged that their expulsion amounted to an infringement of their fundamental rights to freedom expression under Article 19 and freedom of religion under Article 25 of the Constitution of India. The High Court dismissed the petition on the ground that no word or thought in the national anthem could offend any religious beliefs.

Subsequently, they appealed the decision to the Supreme Court of India. The Court found their expulsion in violation of both Articles 19 and 25 of the Constitution, holding that a reasonable limitation on the right to freedom of expression must be based on a “‘a law’ having the statutory force and not a mere executive or departmental instruction.” It found no provisions of the law in the country expressly obligates individuals to sing the national anthem and that the applicable regulatory measures by the State of Kerala’s Department of Education lacked statutory force and that were “mere departmental instructions.

Facts of the Case

1. The appellants-three children belong to a sect called Jehovah’s Witnesses who worship only Jehovah-the Creator and none other. 

2. They refused to sing the National Anthembecause, according to them, it is against the rituals of their religious faith-not the words or the thoughts of the National Anthem-but the singing of it.  They desisted from actual singing only because of their aforesaid honest belief and conviction but they used to stand up in respectful silence daily, during the morning assembly when the National Anthem was sung.

3. A Commission was appointed to enquire and report, and it reported that the children were “law abiding” and that they showed no disrespect to the National Anthem. However, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the appellants from school from July 26, 1985.

4. A representation by the  father of the children to the Education Authorities  requesting that the children  may be permitted to attend the school pending orders from the Government having failed, the appellants filed  a Writ  Petition in the High Court seeking an order  restraining the  authorities from  preventing them from attending the school. A single Judge and then a Division Bench rejected the prayer of the appellants.

5. Pursuant Article 136 of the Constitution, the father later filed a special leave petition in the Supreme Court of India.

6. On August 11, 1986, the Supreme Court overruled the High Court of Kerala in the case of Bijoe Emmanuel v. State of Kerala[2]. The Court held that expelling the children based on their “conscientiously held religious faith” violated the Constitution of India. Justice O. Chinnappa Reddy stated: “No provision of law …obliges anyone to sing.” The Court noted that the right of free speech and expression also includes the right to remain silent and that standing for the national anthem showed proper respect. The Court ordered the school authorities to readmit the children.

Issues Raised: –

The main issue before the Court was whether the expulsion of three children from school for their refusal to sing the national anthem of India was consistent with the constitutional rights to freedom of expression and freedom of religion.

Arguments Advanced: –

The petitioners argued that they are not singing the Anthem although they stand upon such occasions to indicate their relevancy to the anthem. They desisted from actual singing solely attributable to their honest belief and conviction that their faith did not allow them to hitch any rituals accept it is in their prayers to Jehovah their God. They more submitted that they honestly and carefully believe what they aforesaid was not doubtful. They did not hold their beliefs lazily and their conduct was not the result of any perversity. They stressed that singing the Anthem was idolatry and an act of quality to their God.

Judgment: –

Supreme Court Justice O. Chinnappa Reddy delivered the opinion of the Court.

Before handling the merits of the case, the Court counting on the decision of the high court of Australia in Adelaide Company of Jehovah’s Witness v. Commonwealth[3] noted that the “Jehovah’s Witnesses are an association of persons loosely organized throughout Australia et al. who regard the interpretation of the Bible as fundamental to proper religious beliefs.” After discussing a variety of cases on civil liberties of Jehovah’s Witnesses within U. S. and Canada, the Court held that albeit the faith may appear strange or maybe bizarre to us, but the sincerity of their beliefs is doubtless.”

The main issue before the Court was whether the expulsion of three children from school for his or her refusal to sing the anthem of India was according to the constitutional rights to freedom of expression and freedom of religion.

Pursuant to Article 19 of India’s Constitution: “All citizens shall have the proper to freedom of speech and expression”, but it is often reasonably restricted by law “in the interests of the sovereignty and integrity of India, the safety of the State, friendly relations with foreign States, public order, decency or morality, or in reference to contempt of court, defamation or incitement to an offense.” As applied to this case, the Court found no express provisions of law obligating individuals to sing the anthem, neither is it disrespectful to remain silent when the anthem is sung. Relevant here, the Court further discussed the applicability of Section 2 of the Prevention of Insults to National Honor Act of 1971, under which: “Whoever, intentionally prevents the singing of the anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which reach three years or with fine, or with both.” The Court held that standing up silently “clearly doesn’t either prevent the singing of the anthem or cause disturbance to any assembly engaged in such singing.”

In addition, the Court ruled that that applicable regulatory measures created by the State of Kerala’s Department of Education on compulsory participation in singing the anthem in schools amounted to mere “departmental instructions” and thus, they lacked statutory force within the meaning of Article 19 of the Constitution so as to put a limitation on the right to freedom of expression. (See also Kharak Singh v. State of Uttar Pradesh[4], ) consistent with the Court, “any law which can be made under clauses (2) to (6) of Art. 19 to control the exercise of the right to the freedoms guaranteed by Art. 19(1) (a) to (e) and (g) must be ‘a law’ having the statutory force and not a mere executive or departmental instruction.”

With reference to the alleged violation of the proper to freedom of religion under Article 25 of the Constitution, the Court reiterated its jurisprudence that when the proper to freely practice or profess a religious belief is invoked, the offending act in dispute “must be examined to get whether such act is to guard public order, morality, and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it’s authorized by a law made to manage or restrict any economic, financial, political or secular activity which can be related to religious practice or to supply for welfare and reform.”

According to the Court, the determination of whether a specific religion is protected under Article 25 depends on “whether the assumption is genuinely and conscientiously held as a part of the profession or practice of religion.” Having concluded that the youngsters truly and conscientiously believed in their religious conviction, the Court found their expulsion unconstitutional under Article 25 on the ground that is was supported by mere departmental instructions.

On the idea of the foregoing analysis, the Court ruled that the expulsion from school violated the children’s rights to freedom of expression and religion. It accordingly put aside the High Court’s judgment and ordered the State of Kerala to readmit them to high school. It concluded by stating: “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; allow us to not dilute it.”

Concepts Highlighted:

This decision confirms to the global standards of freedom of expression that “no individual can be compelled to affirm a belief and attitude of mind to which he does not subscribe to.”

References: –

1. https://globalfreedomofexpression.columbia.edu/cases/emmanuel-v-state-of-kerala/
2. http://lawtimesjournal.in/bijoe-emmanuel-ors-vs-state-of-kerala-ors/

[1] https://www.telegraphindia.com/opinion/an-anthem-to-nbsp-freedoms/cid/1452470

[2] 1987 AIR 748

[3] (1943) 67 C.L.R 116

[4] AIR 1963 SC 1295