Bijoe Emmanuel v. State of Kerala
Supreme Court of India · 11 August 1986 · 2 judges · 1987 AIR 748; 1986 SCR (3) 518; 1986 SCC (3) 615
Expelling school children who, out of a genuine religious belief, stood respectfully but did not sing the National Anthem violated their rights under Articles 19(1)(a) and 25(1); the Court ordered their re-admission.
Facts
Three children, members of Jehovah's Witnesses, attended a school in Kerala. During the daily morning assembly they stood respectfully while the National Anthem was sung but did not sing, because singing it was against the tenets of their religious faith. In July 1985, after a Member of the Legislative Assembly raised the matter, a Commission was appointed and reportedly found the children law-abiding and not disrespectful. On the instructions of the Deputy Inspector of Schools, the Head Mistress expelled them from 26 July 1985. Their writ petition to the High Court was rejected by a single Judge and then a Division Bench, which examined the words of the Anthem and found nothing offensive to religion. The children appealed by special leave.
Questions before the Court
- Does the law oblige anyone to sing the National Anthem, and is it disrespectful or an offence to stand respectfully without singing?
- Could the children be expelled on the basis of departmental circulars consistently with Article 19(1)(a)?
- Was the expulsion a violation of the freedom of conscience and religion under Article 25(1)?
What the Court held
- No provision of law obliges anyone to sing the National Anthem. Proper respect is shown by standing up when it is sung, and standing respectfully without singing does not prevent the singing or disturb the assembly so as to be an offence under Section 3 of the Prevention of Insults to National Honour Act.
- A restriction on the freedoms in Article 19(1)(a) to (e) and (g) under clauses (2) to (6) of Article 19 must be a law having statutory force, not an executive or departmental instruction. The two circulars relied on had no statutory basis and could not justify the expulsion, which violated Article 19(1)(a).
- The test under Article 25 is not whether a religious belief appeals to the Court's reason or sentiment but whether it is genuinely and conscientiously held as part of the profession or practice of religion; if so, it is protected, subject to the limits in Article 25. A law restricting it must have statutory force.
- The expulsion for not singing, while standing respectfully, on the basis of a conscientiously held religious faith violated Article 25(1). The appeal was allowed, the High Court's judgment set aside, and the authorities directed to re-admit the children, with costs.
Why it matters
The Court held that no law obliges anyone to sing the National Anthem and that standing respectfully in silence is not disrespect. It applied Kharak Singh to hold that fundamental rights under Article 19(1)(a) and Article 25 cannot be restricted by departmental circulars without statutory force, and stated the test of genuine and conscientious belief for Article 25. It also treated a sentence in Jagdishwaranand as a slip, holding that members of a religious denomination may claim Article 25(1).
In the Court's words
Copied from the official judgment; each passage links to its page.
“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 may at once say that there is no provisions of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing.”
“We do endorse the view suggested by Davar J’s observation 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. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject, of course, to the inhibitions contained therein.”
“The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions. They cannot, therefore, form the foundation of any action aimed at denying to citizen’s Fundamental Right under Art. 19(1)(a).”
Provisions interpreted
- Article 25(1), Constitution
- Article 19(1)(a) and 19(2), Constitution
- Article 51A(a), Constitution
- Section 3, Prevention of Insults to National Honour Act, 1971
Related judgments
- Follows Kharak Singh v. State of Uttar Pradesh (1962)“Examining the action of the Education Authorities in the light of Kharak Singh v. State of Uttar Pradesh (supra)” (page 10)
Case and bench
- Parties
- Bijoe Emmanuel v. State of Kerala
- Case
- Civil Appeal No. 870 of 1986
- Decided
- 11 August 1986
- Bench
- Reddy, O. Chinnappa (J), Dutt, M.M. (J)
- Opinions
- Unanimous. The Judgment of the Court was delivered by Chinnappa Reddy, J.
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