A

BIJOE EMMANUEL & ORS.

v.

STATE OF KERALA & ORS.

B

AUGUST 11, 1986

[0. CHINNAPPA REDDY AND M.M. DUTT, JJ.]

c

Constitution o.f India, Art. 19(/)(a) and 25(/)-National

Anthem-Singing o.f-Compulsion despite genuine conscientious religi-

ous objection-Whether contravenes Fundamental Rights. ,

D

Prevention o.f Insult to National Honour Act, 1960, s. 3-

National Anthem-Singing o.f-Re.fusal on genuine conscientious religi-

ous faith-Whether offence committed.

Kera/a Education Act,

1959 read with the Kera/a Education

Rules,

1959, s. 36, Chapter IX

Rule 6--National Anthem-Singing o.f­

Refusal by school pupils on genuine conscientious religious faith­

Whether misconduct entitling censure suspension dismissal of pupil.

E _The appellants-three children belong to a sect called Jehovah's

Witnesses who ·worship only Jehovah-the Creator and none other.

They refused to sing the National Anthem:

'Jana Gana Mana' because,

according to them, it

is against the tenets of their religious faith-not

the words or the thoughts of the

Nl!tional Anthem-but the singing of it.

4

F They desisted from actual singing only because of their aforesaid

honest belief and conviction

but they used to stand up in respectful

-J

silence daily, during the morning assembly when the National Anthem '

was sung.

A Conunission was appointed to enquire and report, and it re-

G

ported that the children were

"law abiiling" 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.

A represe'ltation by the father

of the children to the Education

H Authorities

requesting that the children may be permitted to attend the

518

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.4.

B. EMMANUEL v. STATE 519

school pending orders from the Government having failed, the appel­

lants filed a Writ Petition in the High

Court seeking an order restrain­

ing the authorities from preventing them from attending the school. A

single Judge and

then a Division Bench rejected the prayer of the

appellants.

Allowing

tGe appeal hy Special Leave, to this Court,

HELD:

I. I. The Fnndamental Rights of the appellants under

Art. J9(1)(a) and 25(1) have been infringed and they are entitled to be

protected. 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

niorning assembly

though they do

stand respectfully when the National Anthem is sung, is

a violation

of the fundamental right to freedom of conscience and freely

to profess, practice

and propagate religion. Therefore, the judgine11t of

the High Court is set aside and the respondent antborities are directed

,.,to-~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. [538D-E; 539-C-D]

1.2 There

is no provision of law which obliges anyone to sing the

National Anthem nor is it disrespectful to the National Anthem if a

person who stands

up respectfully when the National Anthem is sung

does not join

the singing. Proper respect is shown to the National

Anthem by standing up when the National Anthem

is sung. It will not be

right to say that disrespect is 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

oflnsults to National Honour Act. [5l7B-G]

2.1 Article 19(1)(a) of the Constitution guarantees to all citizens

freedom of speech and expression, but Article 19(2) provides that nothing

in Article 19(1)(a) sball prevent a State from making any law, in so far as

such law imposes reasonable restrictions

on the exercise of the said right.

Art. 25(1) guarantees

!o all persons freedom of conscience and tlte right

freely to pi:ofess, practise and propagate religion, subject to order, mora­

lity and health and to the other provisions of Part l!ll of the Constitution.

Art. 51-A(a)

of the Constitution enjoins a duty on

e-•ery citizen of India

"to abide by the Constitution and respect Its ideals and institutions, the

National Flag

and the National Anthem''.

[526G·H; 527C]

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520 SUPREME COURT REPORTS 11986) 3 S.C.R.

2.2 While on the one hand, Art. 25(1) itself expressly subjects the

right guaranteed

by it to

public order, morality and health and to the

other provisions of Part HI, on the nther hand, the State is also given

the liberty to make a law

to regulate or

reside! any economic, financial,

political

or other secular activity which may be associated

with religious

practice and

to provide for social welfare and reform, even if such

regulation, restriction

or provision affects the right guaranteed by Art.

25(1). Therefore, whenever the Fundamental Right

to freedom of

cons­

cience and to profess, practise and propagate religion is invoked, the act

complained of as offending the Fundamental Right must

be examined to

discover

·whether such act is to protect public order, morality and

health, whether it

is to give effect to the

other provisions of Part III of

the Constitution or whether it is authorised by a law made to regulate or

restrict any economic, financial political or secular activity which may ;·

be associated with religious practise or to provide for social welfare and

reform_. [531G-H: 532A-R] ·

2. 3 Any law which may be made under clauses 2 to 6 of Art. 19 to

regulate the exercise

of the right to the freedoms guaranteed by Art.

I9(J)(a)

to (e) and (g) must be 'a law' having statutory force and not a

mere executive or departmental instructions. [529E-F]

The two circulars

on which the Department, in the instant case,

has placed reliance have no statutory basis and are mere departmental

instructions. They cannot, therefore, form the foundation of any action

aimed

at denying to citizens Fundamental Right under Art. 19(l)(a).

Further 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(l)(a).

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

religi­

ous objection, then such compulsion would clearly contravene the rights

guaranteed by Art. 19(l)(a) and Art. 25(1). [530C-E; 529C]

Kharak Singh v. State

of

U.P., AIR 1963 SC 1295 and Kamesh­

war Prasadv. The State of Bihar, [1962] Supp. SCR 369 relied upon.

· 3. The Kerala Education Act contains no provision of relevance

and the appellants in the present case have never been found guilty of

~.·

B: EMMANUEL v. STA TE OF KER. [REDDY, J .] 521

misconduct such as that described in Chapter IX, Rule 6 of the Kerala

Education Rules.

On the other hand, the report of the Commission, is to

the effect that tbe

children have always heen well-behaved, law-abiding

and respectful. [5288-C]

I

4. The qlMfilion is not whether a particular religions belief or

practice appeals to our reason or oentiment but whether the belief is

genuinely and conscientiously held as part of the profession or practice

of religion. 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. [533F-G]

In the

instaut ~, what the petitioners truly and conscientiously

believe is not in doubt. They do not hold their beliefs idly and their

conduct is not the outcome of any perversity. The petitioners have not

asserted those beliefs for the (U'St time or out of any unpatriotic sentiment

Jehovah's Witnesses, as they call tbems!'lves, appear to have always

expressed and stood up for such beliefs all the world over. [523C-D]

Adelaide Company of Jehovah's Witnesses v. The Common­

wealth, 67 CLR 116; Minersville School District v. Gebitis, 84 Law Ed.

US 1376; West Virginia State Board of Education v. Barnette, 87 Law

Ed. 1628;

Donald v. The Board of

Education for ·the City Hamilton,

1945 Ontario Reports 518, Sheldon v. Fannin, 221 Federal Suppl. 766;

The Commissioner Hindu Religious Endowments, Madras v. Sri

Lakshmindra Thirtha Swamiar

of Sri Shirur Mutt, [1954]

SCR 1005;

Rati Lal Panachand Gandhi v. The State of Bombay & Ors., [1954]

SCR 1055; SP Mittal etc. etc. v. Union of India & Ors., [1983] 1 SCR

729 and Jagdishwaranand v. Police Commissioner, Calcutta, AIR 1984

SC 51 referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 870

ofl986

From the Judgment and Order dated 7.12.1985 of the Kerala

High

Court in W.A. No. 483of1985.

F.S. Nariman, T.S. Krishnamurthy Iyer, K.J. John and M. Jha

for the Appellants.

G. Viswanatha Iyer and Mrs. Baby .Krishnan for Respondent

Nos. I

to3.

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522 SUPREME COURT REPORTS [!986] 3 S.C.R.

A P .. S. Poti, E .. M.S. Anam and James Vincent for the Respon-

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dents. 1

The Judgment of the Court was del.ivered by

CIDNNAPPA REDDY, J. The three child-appellants, Bijoe, Binu

Mol and Bindu Emmanuel, are the faithful

of Jehovah's Witnesses.

They attend school. Daily, during the morning Assembly, when the

National Anthem 'Jana

Gana Mana' is sung, they stand respectfully

but they do not sing. They do not sing because, according to them, it is

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 have

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 un­

patriotic

of the children not to sing the National Anthem. He hap­

p.ened

to be a Member of the Legislative Assembly.

So, he put a

question

in the Assembly. A Commission was appointed to enquire

and report. We do not have the report

of the Commission. We are told

that

·the Commission reported that the children are 'law-abiding' and

that they showed no disrespect to the National Anthem. Indeed it is

nobody's case that the children are other-4han well-behaved or that

they have ever behaved disrespectfully when the National Anthem was

sung. They have always stood up in respectful silence. But these. mat­

ters

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. 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. They

have

now come before us by special leave under Art. 136 of the

Constitution.

We are afraid the High court misdirected itself and went off

at a

tengent. They considered, in minute detail,' each and every word and

thought

of the National Anthem and concluded that there was no word

,----,

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B. EMMANUEL v. STATE [REDDY, J.I 523

or thought in the National Anthem which.could offend anyone's religi~

ous susceptibilities. j3ut that is not the question at all. The objection of

the petitioners

is 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

banna in the

United States and so on. in their words in the Writ

Petition they say, "The students who are Witnesses do not sing the

Anthem though they stand up on such occassions to sh'\lw 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

i.oin any rituals except it be in their prayers to Jehovah their God."

That the petitioners truly and consdentioulsly believe what they

say

is not in doubt. They do not hold their beliefs idly and their con­

duct

is not the outcome of any perversity. The petitioners have

·not

asserted these beliefs for the first time or out of any unpatriotic senti­

ment. Jehovah's Witnesses, as they call themselves, appear to have

always expressed and stood up for such beliefs all the world over as we

shall presently show. Jehovah's Witnesses-and their peculiar beliefs

though little noticed

in this

country, have been noticed, we find, in the

Encyclopaedia Britannica and have been the subject of judicial pro­

nouncements elsewhere.

In 'The New Encyclopaedia Britannica' (Macropaedia) Vol. 10

page 538, after mentioning that Jehovah's Witnesses are "the adhe­

rents

of the apocalyptic sect organized by Charles Taze Russell in the

early

1870", it is further mentioned, " , .. , .. They believe that the

Watch Tower Bible and Tract Society, their legal agency and publish­

irig arm, exemplifies .the

will of God and proclaims the truths of the

Bible against the evil triumvirate of organized religion,

die business

world, and the state

...... The Witnesses also stand

apart from-civil

society, refusing to vote, run for public office, serve in any atmed

forces, salute the flag, stand for the National Anthem, or recite the

pledge

of allegiance. Their religious stands have brought dashes with

various governments, resulting in law suits,

mob vioience; itrtprisor).­

ment, torture, and death. At one time more than 6,000 Witnesses were

inmates of Nazi concentration camps, Communist and Fascist States

usually forbid Watch Tower acti.vities. In the U.S. the sodety has

taken 45 cases to the Supreme Court and has won significant victbries

for freedoll! of religion and speech. The Witnesses have been less

successful in claiming exemptions as ministers from military service

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524 SUPREME COURT REPORTS 11986] 3 S.C.R.

and in seeking to withhold blood transfusions from their children."

Some of the beliefs held by Jehovah's Witnesses are mentioned

in a little detail in the statement ·of case in Adelaide Company of

Jehovah's Witnesses v. The Commonwealth, 67 CLR 116 a case de-

B cided by the Australian High Court.

It is stated,

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"Jehovah's Witnesses are an association of persons loosely

organised throughout Australia and elsewhere who regard

the literal interpretation of the Bible

as Fundamental to

proper religious

beliefs."

"Jehovah's Witnesses believe that God, Jehovah, is

the Supreme ruler of the universe. Satan or Lucifer was

originally part of God's organization and the perfect man

was placed under him. He rebelled against God and set up

his own

organization in challenge to God and through that

organization had ruled the world. He rules and controls the

world through material agencies suc_h as organized politi­

cal, religious, and financial bodies. Christ, they believe,

came lo earth to redeem air men who would devote them­

selves entirely to serving God's

will and purpose and He

will come to earth again (His second coming has already

begun) and

will over-throw all the powers of evil."

'These beliefs lead Jehovah's Witnesses to proclaim

and teach publicly both orally and by means

of printed

books and pamphlets that the British Empire and also

other organized political bodies

are organs of Satan, un­

righteously governed and identifiable with the Beast

in the

thirteenth chapter of the Book of Revelation. Also that

Jehovah's Witnesses are Christians entirely devoted to the

Kingdom of God,

W.hich is "The Theocracy" that they have

no part

in the political affairs of the

worlq and must not

interfere in the least manner with war between nations.

They must

be entirely neutral and not interfere with the

drafting of men of nations they

go to war. And also that

wherever there

is a conflict between the laws of Almighty

God and the Laws of man the Christian must always obey

God's law

in preference to man's law. All laws of men,

however,

in harmony with God's law the Christian obeys.

God's law is expounded and taught by Jehovah's Witnes-

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B. EMMANUEL v. STATE (REDDY, J.i 525

ses. Accordingly they refuse to take an oath of allegiance to A

the King or other constituted human authority."

'fhe case of Adelaide Company of Jehovah's Witnesses v. The

Commonwealth

(supra) arose out of an action to restrain the

Com­

monwealth of Australia from enforcing the National Security (Subver-.

sive Associations) Regulations to the Jehovah's Witnesses.

Minersville

School District v. Gobitis, 84 La\v. Ed. US 1375 and

West Virginia State Board of Education v. Barnette, 87 Law Ed. 1628 are

two cases decided

by the American

Supreme Court in which Jehovah's

witnesses claimed

that they could not be compelled

tci salute the flag of

the United States while reciting pledge of allegiance. In the latter case,

Jackson, J. referred to the particular belief of the Witnesses which was

the subject matter of that case, as follows:

"The Witnesses are an unincdrporate<) body teaching that

the obligation imposed

by law of God is superior to that of

laws enacted by temporal government. Their religious

be­

liefs incl~de a literal version of Exodus, Chapter J:'X_, ver­

ses 4 and 5, which says "1bou shall not make upto the any

· graven image, or any likeness of anything that is in heaven

above,

or that is in the earth beneath, or that is in the water

under

the earth; thou shalt not bow down thyself to them,

nor serve

them." They consider that the flag is an "image"

within this command. For this reason they refuse to salute

it."

Donald v. The Board of Education for the City Hamilton 1945

_()ntario Reports 518 is a case decid_ed by the .Court of Appeals of

Ontario where the objection by Jehovah's Witnesses was to saluting

the flag and singing National Anthem. The Court referred to the fol­

lowing belief of the Jehovah's Witnesses:

"The appellants, father and sons, are affiliated with

"Jehovah's Witnesses" and believe that saluting the flag

and 1oining in the singing of the national anthem are both

contr'ary to and_ forbidden by command of Scripture-the

former because they consider the flag an "image" within

the literal meaning of-Exodus, Chapter XX verses 4 and 5,

and the latter because, while they respect the King and the

· State, the prayer voiced in this anthem is not compatible

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526 SUPREME COURT REPORTS [1986] 3 S.C. R.

with the belief and hope which they hold in the early com­

ing of the new world, in the government of which present

temporal states can have no part."

Sheldon v. Fannin, 221 Federal Supp. 766 a case decided by the

United States District Court of Arizona also arose out of the refusal of

B Jehovah's Witnesses to stand when the National Anthem

was sung.

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The Couri observed:

'This refusal to participate, even to the extent of standing,

without singing,

is said to have been dictated by their

religi­

ous beliefs as Jehovah's Witenesses, ,requiring their literal

acceptance of the Bible as they Word of Almighty God

Jehovah. Both precedent and authority for their refusal to

stand is claimed to be found

in the refusal of three Hebrew

children Shadrach, Meshach and Abednege, to bow down

at the sound of musical instruments playing

patriotic­

religious music throughout the land at the order of King

Nebuchadnezzar of ancient Babylon

..... (Daniel 3 : 13-

28) For a similar reason, members of the Jehovah's

Witnes­

ses sect refuse to recite this Pledge of Allegiance to the Flag

of the United States viewing this patriotic ceremony to be

the worship of a graven iinage. (Exodus 20: 4-5). However,

by some process of reasoning we need not tarry to explore,

they are willing to stand during the Pledge of Allegiance,

Out of respect for the Flag as a symbol of the religious

freedom they enjoy (See

Board of Education v. Barnette;

319 us 624

(1943)."

It is evident that Jehovah's Witnesses, wherever they are, do

hold religious beliefs which may appear strange or even bizarre to us,

but the sincerity of their beliefs is beyond question. Are they entitled

to be protected by the Constitution?

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

sove­

reignty and integrity of India, the security of the State, friendly rela­

tions with foreign States, public order, decency or morality, or in

relation to contempt of court, defamation or incitement to an offence.

Art 25(1) guaraniees to all persons freedom of conscience and the

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B. EMMANUEL v. STATE [REDDY, J.] 527

right freely to profess, 'practise and propogate religion, subject to or­

der, morality and health and to the other provisions of Part III of the

Constitution. Now, we. have to examine 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.

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 respect­

fully when the National Anthem

is sung does not join the singing. It is

true 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 institu:

tions,

the National Flag and the National

Anthem." Proper respect is

shown

to the National Anthem by standing up when the National

Anthem is sung. It will not be right to say that disrespect is shown by

not joining in the singing.

·

Parliament has not been unmindful of 'National Honour'. 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 Con­

stitution

oflndia, 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 imprison­

ment for a term which extend to three years

or with find, or

with

both."

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 Preven­

tion

of Insults to National Honour Act.

The Kerala Education Act contains no provision of relevance. Section 36, however, enables the Government to make rules for the

'JlUrpose of carrying into effect the provisions of the Act and in particu­

lat to provide for standards of education and courses of study. The

Kerala Education Rules have been made pursuant to the powers con­

ferred by the Act. Chapter VIII of the Rules provides for the organisa­

tion

of

instruction and progress of pupils. Rule 8 of Chapter VIII

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528

SUPREME COURT REPORTS (1986] 3 S.C.R.

provides for moral instruction and expressly says "Moral instruction

should form a definite programme in every school but it should in no

way wound the social or religious susceptibilites of the peoples gener­

ally." 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 guility

of deliberate in-subordination, mischief, fraud,

mal-practice

in examinations, conduct likely to cause unwholesome

influence

on other pupils etc. It is not suggested that the present appellants

have

ever been found guility of misconduct such as that described in

Chapter IX, Rule 6.

On the other hand, the report of the Commission,

we are told, 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 1%1 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 un­

der the head patriotism it is mentioned,

'

"Patriotism

L Environment should be created in the school to develop

the right kind

of

patriotisms· in the children. Neither reli­

gion

nor party nor anything of this kind should stand

against

one's love of the country.

•.

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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, with which we are concerned, is as 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

B. EMMANUEL v. STATE [REDDY, J.) 529

the National Pledge before marching back to the classes."

Apart fropt the fact that the circulars have no legal sanction

behind them

in the sense that they are not issued under the authority of

. .

any statute, we also notice 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."

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

co_mpulsion

would clearly contavene the rights guaranteed by Art. 19(1)(a) and

Art. 25(1).

We have referred to Art. 19(1)(a) which

guarantees to a:n citi­

zens freedom of speech and expression and to Art.

19(2) which pro­

vides

that nothing in Art. 19(1}(a) shall prevent a State fro'm

making

any law, in so far as such law impose reasonable restrictions on the

exercise of the right conferred by Art. 19(l)(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 now well settled that any law which may be made under

clauses (2) to

(6) of Art. 19 to regulate the exercise of ihe right to the

freedoms guaranteed by Art. 19(1)(a) to (e) and (g) must be 'a law'

having statutory force and .not a mere executive or departmental in­

struction. In

Kharak

Singh v. State of U.P., AIR 1963 SC 1295 the

question arose whether a police regulation which

was a mere depart­

mental instruction, having no statutory basis could be said to be a law

for

the purpose of Art. 19(2) to (6). The Constitution Bench answered

the question in the negative and said,

·

'Though learned Counsel for the respondent started by

attempting such a justification by invoking s.

12 of the

Indian Police

Act he gave this up and

-conceded that the

regulations contained

in Ch.

XX had no such statutory

basis

but were merely executive or departmental instruc­

tions framed for the guidance of the police officers. They

would not therefore be

"a law" which the State is entitled

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530 SUPREME COURT REPORTS 11986) 3 S.C.R.

to make under the relevant els.

(2) to ( 6) of Art. 19 in

order

to regulate or curtail fundamental rights guaranteed by the

several sub-clauses of Art. 19(1), not would the same be "a

procedure established by law" within Art. 21. The position

therefore

is that if the action of the police which is the arm

of the executive of the State

is found to infringe any of the

freedoms guaranteed to the petitioner the petitioner would

be entitle'd to the relief of mandamus

which he seeks, to

restrain the State from taking action under the

regu­

lations."

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). Further 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 or­

der, decency ot morality, or in relation to contempt of court, defama­

tiOn or in.citement 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).

In Katneshwar Ptasad v. The State of Bihar, 11962) SUPP. SCR 369 a

Constitution Bench of the court had to consider the validity of Rule 4A

of

the Bihar Government Servants' Conduct Rules which prohibited

any form of demonstration even if such demonstration was innocent

and incapable of causing a breach of public tranquility. The court said,

"No doubt, if the rule were so framed as to single out those

types of demonstration which were likely to lead

to a

dis­

turbance of public tranquility or which would fall under the

· other limiting criteria specified in Art. 19(2) the validity of

the rule could have been sustained. The vice of the rule, in

our opinion, consists in this that it lays a ban on every type

of

demonstration-be the same however innocent and

however incapable of causing a breach of public tranquility

and does not confine itself to those

forms of

demonstra­

tions which might lead to that result."

Examining the action of the Education Authorities in the light of

Khatak Singh v. State of Uttar Pradesh (supra) and Kameshwar

Pradesh

v.

State of Bihar (supra) we have no option but to hold that

the expulsion of the children from the school not joining the singing of

B. EMMANUEL v. STATE [REDDY,~.] 531

. ""

the National Anthem though they respectfully stood up in silence . A

when the Anthem was sung was violative of Art. 19(1)(a).

Turning next to the Fundamental Right guaranteed by Art. 25,

we may usefully set out here that irticl~ to the extent relevant:

"25(1) Subject to public order, morality and health and to

B

-A.

the other provisions of this Part, all persons are \lCjllally

entitled to freedom of conscience and the right freely to

profess, practise and propagate religion.

~ (2) Nothing in this article shall affect the operation of any

existing law or prevent the State from making any

law-c

(a) reguiating 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

D

of Hindu religious institutions of a public character to all classes and

·sections of Hindus."

(Explanations I and II not extracted as unnecessary) A,rticle 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 !lbility of

E

even an insignificant minority to find its identity under the country's

-1 Constitution. This has to be borne in mind in interpreting Art. 25.

-~

0

We see that the right to freedom of conscience and freely to

. ,+

profess, practise and propagate religion guaranteed by Art, 25 is sub-.

ject to (1) public order, morality and health; (2) other provisions of

Part III of the Constitution; (3) any law (a) regulating or res jctiµg

F

~ any economic, financial, political or other secular activity which may

be associated with. religious practi":"; or (b) providing for social welfare

and reform or the throwing open <?f Hindu religious institutions of a

public character to all classes and sections of Hindus. Thus while on

the one hand, Art. 25(1) itself expressly subjects the right guaranteed

G

by it to public order, morality and health and .to the other provisions of

Part III, on the other hand, the State is also given the liberty to mlll<e a

""""

law to regulate or restirct any economic, financial, political or other

secular activity which may be associated with religious practise and to

provide for social welfare and reform, even if such regulation, restric-

tion

or provision affects the right guaranteed by Art. 25(1). Therefore,

H

532 SUPREME COURT REPORTS [1986] 3 S.C.R.

A whenever the Fundamental Right to freedom of conscience and to -f' ~

profess, pr,actise and propagate religion is invoked, the act complained

of

as offending the Fundamental Right must be examined to

discover

whether such act is to protect public order, morality and health,

whether it

is to give effect to the other provisions of Part III of the

B

Constitution or whether it is authorised 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. It is the duty and function of the Court so to do. Here

• again as mentioned in connection with Art. 19(2) to (6), it must be a

law having the force of a statute and not a mere executive or a depart-

mental instruction.

We may refer here to the observations of Latham,

c CJ. in Adelaide Company of Jehovah's Witnesses v. The Common-

wealth (supra), a decision of the Australian High Court quoted

by

Mukherje, J. in the Shrirur Mutt case.

Lat~am, CJ. had said:

4-

"The Constitution protects religion within a community

organized under a Constitution,

so that the continuance of

D such protection necessarily assumes the continuance of the

community

so organized. This view makes it possible to

reconcile religious freedom with ordered government.

It

does not mean that the mere fact that the Commonwealth

Parliament passes a

law in the belief that it will promote the

peace, order and good government of Australia precludes

~

E any consideration by a court of the question whether or not

f-

such a law infringes religious freedom. The final determi-

I-

nation of that question by .Parliainent would remove all ,_

reality from the Constitutional guarantee. That guarantee

"

is intended to limit the sphere of action of the legislature.

+ The interpretation and application of the guarantee can-

F not, under our Constitution, be left to Parliament, If the

guarantee

is to have any real significance it must be left to

. .., -

the courts of justice to determine its meaning and to give

effect to it by declaring the invalidity of laws which infrin-

ges it_ and by declining to enforce them. The courts will

therefore have the responsibility of determining whehter a

G particular law can fairly be regarded,

as a law to protect the

existence of the community, or whether, on the other hand,

it

is a law

"for prohibiting the free exercise of any reli-

~

gion." The word "for" shows that the purpose of the legis-

lation in question

may properly be taken into account in

I-

determining whether or not it is a law of the prohibited

H character."

• . .

B. EMMANUEL v. STATE [REDDY, J.] 533

What Latham, CJ. has said about the responsibility of the court ac­

cords with what we have said about

the function of the court when a

claim

to the Fundamental Right guaranteed by Art. 25 is put forward.

The meaning of the expression 'Religion' in the context of the

Fundamental -Right to freedom of conscience and the right to profess, ..

practice and propagate religion, guaranteed i>y Art. 25 of the Con-

stitution, has been explained in the well known cases of The Commis­

sioner, Hindu Religious Endowments, Madras

v.

Sri Lakshmindra

Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR 1005 Rati Lal

Panachand Gandhi v. The State of Bombay & Ors., [1954] SCR 1055

and S.P. Mittal Etc. Etc. v. Union of India & Ors., [1983] SCR 729. It is

not necessary for our present purpose to refer to the exposition con­

tained in these judgments except to say that in. the first of these cases

Mukhetjea, J. made a reference to "Jehova's Witnesses" and appea­

red to quote with approval the views of Latham, CJ., of the Australian

High Court in Adelaide Company v. The Commonwealth (supra) and

those of the American Supreme Court in West Virginia State Board of

Education v. Bamettee (supra). In Ratilal's case we also notice that

Mukherjea, J .. quoted as appropriate Davar, J. 's following observa­

tions In Jamshedji v. Soonabai, 23 Bomaby ILR 122:

"If ·this is the belief of the Commu"nity and it is proved

undoubtedly

to be the belief of the Zoroastrian commu­

nity,-a secular Judge is bound to accept thatbelief-it is

not for him to sit in judgement on that

belid, he has no

right

to interfere with the conscience of a doner who makes

a gift in favour

of what he _believes to be the advancement

of his religion and the welfare

· of his community or

mankind."

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 rea.:tions 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.

1

In Minersville School Dist. v. Gobitis (supra) the question arose

whether the requirement of participation by pupils and public schools

in the ceremony of saluting the national ·flag did not infringe the liberty

guaranteed by the 14th amendment, in the case of a pupil who re-

'

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534 SUPREME COURT REPORTS [1986] 3 S.C.R.

fused to participate upon sincere religious grounds. Frankfurter, J.

great exponent of the theory of judicial restrain that he was speaking

for the majority of the United States Supreme Court upheld the re­

qJJirement regarding participation

in the ceremony of flag salutation

primarily on the ground,

"The wisdom of training children in patriotic impulses by

those compulsions which necessarily prevade so much of

the edueational process is not for our independent judg-

ment

......... For ourselves, we might be tempted to say

that the deepest patriotism

is best engendered by giving

unfettered scope to the most crochety beliefs

...... But the

courtroom

is not the arena for debating issues of educa­

tional policy.

It is not our province to choose among com­

peting considerations

in the subtle process of securing ef­

fective loyalty to the traditional ideals of democracy, while

respecting at the same time individual idiosyncracics

among a people so diversified

in racial origins and religious

allegiances so

to· hold would in effect make us the school

board for the country.' That authority has not been giving

to this Court, not should we assume it."

Frankfurter, J's view, it is seen, was founded entirely upon his concep­

tion

of judicial restraint. In that very case Justice

Stone dissented and

said,

"It (the Government) may suppress religious practices

dangerous to morals, and presumably those also which are

inimical to public safety, health and good order. But it is a

long step, and one which I am unable to take, to the posi­

tion that Government may, as a supposed, educational

measure and as a means of disciplining young, compel affir­

mations which vie>late their religi_ous conscience."·

Stone,

J.

further observed:

"The very essence of the liberty which they guaranteed is

the freedom of the individual from compulsion as to what

he shall think and what he shall say, at least where the

compulsion

is to bear false witness to his

religion"

)' -

I -

•·

B. EMMANUEL v. STATE [REDDY, J.] 535

It was further added:

"History teaches us that there have been but few infringe­

ments of personal liberty by the State which have not been

justified,

as they are

Jiere, in the name of rigl)teousness

and the public good, and few which have·norbeen directed,

as they

.are now, had politically helpless

manners."

We. do not think that it is necessary to consider the case of Gobitis at·

greater length as the decision was overruled very shortly after it was

pronounced by the same court

in.West Virginia

State Board of Educa­

tion

v. Barnene (supra). Justices

Blacl<' and Douglas who had agreed

with Justice Frankfurter in the

Gobitis's case retraced their steps and

agreed with Justice Jackson who gave the opinion of the court

in West

Virginia

State Board of Education v. Barnene (supra). Justice .Jackson

in the course of his opinion observed,

It is also to be noted that the compulsory flag salute and

pledge requires affirmation of a belief and an attitude of

mind.

It is not clear whether the regulation contemplates

that pupils forego any contrary convictions of their own

and become unwilling converts to the prescribed ceremony

or whether it will be acceptable

if they simulate assent by

words without belief and by a gesture barran

of meaning. It

is now a commonplace that censorship or suppression of ex­

pression of opinion is tolerated by our Constitution only when

the expression presents a clear and present danger of action

of a kind the

State is empowered to prevent' and punish. It

would seem that involuntary affirmation could be comman~

ded only on even .more immediate and urgent grounds than

silence. But here the power of compulsion

is invoked

without any allegation that remaining passive during a flag

salute ritual creates a clear and present danger that would

justify an effort even to muffle expression. To sustain the

compulsory

flag salute we are required to say that a Bill of

Rights which guards the individual's right to speak his

own

mind, left it open to public authorities to compel him to

utter what

is not in his

mind."

Justice Jackson referred to Lincoln's famour dilemma 'must. a govern­

ment of necessity be too strong for the· liberties of its people, or too

weak to maintain its own existence' and added, ·

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536

SUPREME COURT REPORTS [1986] 3 S.C. R.

"hmay be doubted whether Mr. Lincoln would have

thought that the .strength

of.

g9vemment to maintain itself

would

be impressively vindicated-by our confirming power

of the state to expel a handful of children from school.

Such

over simplification, so handy in political debate, often lacks

the precision necessary to postulates of judicial reasoning.

If validly applied to this problem, the utterance cited would · resolve every issue of. power in favour of those in authority

and would require us to override every liberty thought to

weaken or delay execution of their policies.

Government of limited power need not be anemic

government. .Assurance that rights are secure tends to

diminish fear and jealousy of strong government, and by

making

us feel safe to live under it makes for its better

support. Without promise of a limiting

Bill of Rights it is

doubtful if

our. Constitution could have mustered enough

strength to enable its ratification. to enforce those rights

today

is not to choose weak government over strong govern­

ment., It is only to adhre as a means of strength to indi­

vidual freedom of mind in preference to officially disci­

plined uniformity for which history indicates a disappoint­

ing and disastrous end."

Dealing with the argument that any interference with the authority of

the school Board would

in effect make the court the

School Board for

the country as suggested by Justice Frankfurter, Justice Jackson said,

"There are village tyrants as well as village Hampdens, but

none who acts under color of

law is beyond reach of the

Constitution

..... We cannot, because of modest estimates

of our competence

in such specialities

a·s public education,

withhold the judgment that history authenticates as the

function of this court when liberty

is

infringed."

Justice Jackson ended his opinion with the statement

"If there is any fixed star in our Constitutional con­

stellation, it

is that no official, high or petty, can prescribe

what shall be orthodox

in politics, nationalism, religion, or

other matters of opinion or force citizens to confess

by word

or act their faith therein.

If there are any circumstances

which permit an exception, they do not

now occur to us.

.

..

-,__t.

-----'(

-i

B. EMMANUEL v. STATE. [REDDY, J.) 537

We think the action of the local authorities in compel­

ling the flag salute and pledge transcends constitutional

limitations on their power and invades the sphere of intel­

lect and spirit which it

is the purpose of the First Amend­

ment

to our Constitution to reserve from all official

control."

Sheldon v. Fannin (supra) was a case where the pupils refused even to

stand when the National Anthem was sung. We do not have to con­

sider

that situation in the present case since it is the case of the appel­

lants and it is not disputed that they have always stood up and they will

always stand up respectfolly when the National Anthem

is sung.

·

Donald v. Hamilton Board Education (supra) was again a case ot

objection by Jehovah's witnesses to flag salutation and singing the

national anthem. Gillanders,

J.A., said: "There is no doubt that the teachers and the school

board,

in the case now being considered, in good faith pre­

scribed the ceremony of the flag salute only with the

thought of inculcating respect for the flag and the Empire

or Commonwealth of Nations which events of recent years

have given more abundant reason than ever before to love

and respect.

If I were permitted to be guided by my

personal views, I would find

.it difficult to understand how

any well-disposed person could offer objection

to joining in

such a salute on religious or other grounds. To me, a com-

·

mand to join the flag salute or the singing ·of the national

anthem would be a command not to join

in any enforced

religious exercise, but, viewed

~n proper perspective, to

join in an act of respect for a contrary principle, that is, to

pay respect to a nation and country which stands for religi­

ous freedom, and the principle that people may worship as

they please, or not at all."

"But, in considering whether or not such exercises may or

should, in this case, be considered as having devotional or religious

significance, it would be misleading to proceed on any personal views

on what such exercises might include or exclude."

After referring to Jackson, J's opinion in West Virginia .State Board of

A

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Education v. Barnette (supra) and some other cases, it was further H

observed, .

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538

SUPREME COURT REPORTS [1986) 3 S.C. R.

"For the Court to take to itself the right to say that

the exercises here in question had no .religious or devo­

tional significance might well

be for the Court to deny that

very religious freedom which the statute is intended to provide."

"It is urged that the refusal of the infant appellants

to join in

the exercises in question is disturbing and consti­

tutes conduct injurious to

tl)e moral tone of the school. It is

not claimed that the appellants themselves engaged in any

alleged religious ceremonies

or observations, but only that

they refrained from joining in the exercises in question

.............. To do just that could not, I think be vie­

wed as conduct injurious

to the moral tone of the school or

class."

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

wl)en the anthem is sung, is a violation of their fundamen­

tal riglit to freedom of conscience and freely to profess, practice and

propagate religion.

Shri Vishwa Nath Iyer and Shri Potti, who appeared for the

respondents suggested that the appellants, who belonged but to a re­

ligious denomination co.old

not claim

the Fundamental Right guaran­

teed by Art. 25(1) of the Constitution. They purpored to rely upon a

sentence in the judgment of this court in Jagdishwaranand v. Police

Commissioner, Calcuaa, AIR 1984 SC 51. The question in that case

was

whether the Ananda Margis had a fundamental right within the

meaning of Art

.. 25 or Art 26 to perform Tandava dance in public

sfreets and public place~. Jhe Court found that Anand Marga was a

Hindu religious denomination and not a separate religion. The court

examined the question whether the Tandava dance was a religious rite

or practise essential to the tenets of the Ananda Marga and found that

it was not. On that finding the court concluded that the Ananda Marga

had no fundamental right to perform Tandava dance in public streets

and public places. In course of the discussion, at one place, there is.

found

the following sentence:

"Mr. Tarkunde, Counsel for the petitioner had claimed

B. EMMANUEL v. STATE [REDDY, J.) 539

proteciion of Art. 25 of the Constitution; but in view of our

finding

that Ananda Marga was not a separate religion. appli­

cation of Art.

25 is not

attracted."

This sentence appears tci have crept into the judgment by some slip. It

is not a sequitur to the reasoning of the court on any of the issues. In

fact, in ihe subseq UM! paragraphs, the court has expressly proceeded

to consider ihe claim of the Ananda .Marga to perfonn Tandava dance

in public streets pursuant to the right claimed by them under Art.

25(1). -

We, therefore, find that the Fundamental Rights of the appel­

lants under Art. 19(l)(a) and 25(1) have been infringed and they ate

entitled to be protected. We allow the appeal, set aside the judgment

cif the High Court and direct the respondent authorities to re-admit the

children into ihe school, to permit them to pursue their studies without

hindrance and io facilitate the pursuit

of their studies by

giving them

the necessary facilities. We oniy wish to' add: our tradition teaches

tolerance; our philosophy preaches tolerance; our eonstitutiori prac­

tices toletililce; let us not dilute it.

the appellants are eniitled to their costs.

M.L.A. Appeal allowed,

;

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