BIJOE EMMANUEL VS. STATE OF KERALA : CASE SUMMARY
The Supreme Court in Bijoe Emmanuel Vs. State of Kerala (1986) 3 SCR 518 held expulsion of children of Jehovah faith from school for not singing national anthem was in violation of Fundamental Rights under Article 19 (1) (a) and Article 25 (1).
FACTS OF THE CASE
Three children including of Bijoe Immanuel were faithful of Jehovah’s witnesses. They used to attend school daily but when in the morning jana gana mana was being sung, they stood respectfully but did not sing. They did not sing as according to them it is against their religious faith. A member of Legislative Assembly questioned about the same in the Assembly and a commission was constituted. Commission reported that they were law abiding and stood in respect in silence during singing of national anthem. But under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the children on 26th July, 1985. Representation of the children before school authorities and writ petition before the High Court was dismissed. Finally Special Leave Petition was filed before the Supreme Court.
FINDINGS OF THE SUPREME COURT
The Supreme Court noted that children desisted from singing nation anthem 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. Jehovah’s witnesses and their peculiar beliefs though little noticed in this country had been noticed in encyclopedia Britannica and have been subject of judicial pronouncements elsewhere.
The issue before the Supreme Court was whether expulsion of children from the school was consistent with the rights guaranteed by Article 19 (1) (a) and Article 25 (1) of the Constitution?
The Supreme Court observed that there is no law which obliges a person to sing national anthem. Article 51 A (a) imposed a duty on every citizen to abide by the Constitution and respect its ideals and institutions, national flag and national anthem. Proper respect had been shown in this case by standing. Not joining in singing is not a disrespect.
The Supreme Court observed that not singing national anthem does not violate provisions of Preventions of Insults to National Honor Act, 1971 as there has been no prevention from singing national anthem or disturbance to the assembly in singing national anthem.
Kerala Education Authorities relied on two circulars issued by the Department.
The Supreme Court observed that Article 19 (1) (a) guarantees to citizens freedom of speech and expression. Article 19 (2) provides that nothing in Article 19 (1) (a) shall prevent a State from making any law in so far as such law impose reasonable restrictions on the exercise of the right conferred by Article 19 (1) (a) 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. The law is well settled that any law made under Article 19 (2) to (6) must be “law” having statutory force. The two circulars issued by the department did not have any statutory force but were mere instructions.
The Supreme Court observed that Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s constitution. This has to be borne in mind in interpreting Article 25.
The Supreme Court observed that Right to freedom of conscience and freely to profess, practice and propagate religion guaranteed by Article 25 is subject to (1) public order, morality and health; (2) other provisions of Part III of the Constitution; (3) any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice (b) providing for social welfare and reform or the throwing open of Hindu Religious institutions of a public character to all classes and sections of Hindus.
The Supreme Court observed that whenever the Fundamental right to freedom of conscience and to profess, practice and propagate religion is invoked, the act complained of as offending the Fundamental Rights must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to other provisions of Part III of the Constitution or whether it is authorized by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice or to provide for social welfare and reform. Here again as mentioned in connection with Article 19 (2) to (6), it must be a law having the force of a Statute and not a mere executive or a departmental instruction.
The Supreme Court endorsed the view that a particular religious belief or practice appeals tour reasons or sentiment is not a relevant question but real question is 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 to, of course, to the inhibitions contained therein.
The Supreme Court held that expulsion of children was in violation of Fundamental Rights enshrined under Article 19 (1) (a) and Article 25 (1).
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.