The
case Bijoe Emmanuel & Ors vs State of Kerala & Ors deals with the
expulsion of three children belonging to Jehovah’s Witness sect being expelled
from the school because they refused to sing the National Anthem during the
morning assembly. The followers of the given sect worship only Jehovah – the
Creator and it is against the tenets of their religion to sing the National
Anthem. A Commission appointed to inquire and report said that the students
were “law abiding” and there was no disrespect shown by them to the National
Anthem. However, the children were expelled by the Head Mistress of the school
under the direction of the Deputy Inspector of Schools.
This
given act of expulsion led the fathers of the children to request the
Educational Authorities to let the children attend school. However, this plea
was rejected and then they filed a Writ Petition in the High Court seeking an
order to allow the children to attend the school. However, the appeal was
rejected which led to the case going to the Apex Court of the country.
Article
19(1)(a) of the Indian Constitution guarantees all the Indian citizens the
right to freedom of speech and expression and Article 25(1) provides for the
freedom of conscience and right to profess, practice and propagate religion,
subject to order, morality and health to other provisions of Part III of the
Constitution". On the other hand, Article 51-A(a) of the Constitution bestows
upon the responsibility on the citizens of India to abide by the rules
mentioned in the Constitution and respect its ideals and institutions including
the National Flag and the National Anthem.
According to the verdict of the Supreme Court,
the given expulsion of the three students is a violation of their Fundamental
Rights as enshrined in the Articles 19(1)(a) and 25(1) of the Constitution. The
children refrained from singing the Anthem because of their strongly held
religious faith and they respectfully stood when the National Anthem was sung. No
provision in law obliges a person to join the singing of the National Anthem.
Moreover, the students gave due respect to the National Anthem by standing up
during its singing. Hence, in order to restore the rights of the students to
freely profess and practice their religion, the judgement of the High Court was
set aside and the school authorities were redirected to re-admit the students
to the school.
While
the Article 19(1)(a) of the Constitution gives all the citizens the freedom of
speech and religion, Article 19(2) gives liberty to the State to make laws to
regulate the freedoms given by Article 19(1). Similarly, the State is given the
liberty to “make a law to regulate or restrict 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 Article 25(1)”.
However, whenever any rule is made under the clauses 2 to 6 of Article 19 to
restrict the freedom guaranteed by clause 1 of the same Article, it must be a
law made by the legislature and must not be a departmental or executive
guideline. The two circulars (issued by the Director of Public Instruction,
Kerala in September 1961 and February 1970) on which the Department relied in
this case did not have statuary basis and were just based on executive orders.
Hence, the Court was right in nullifying the expulsion of the students from the
school.
The
religious practices of the Jehovah's Witnesses students might seem unreasonable
to many. However, it must be noted that the beliefs of the community are
genuinely held across the world. The
petitioners had not chosen not to sing the National Anthem first time or out of
any unpatriotic sentiment, they stood up for such beliefs in other countries as
well. There have been court cases where the petitioners from the given
community have detested the singing of the National Anthem not only in India
but also in the UK and the USA. In this light, it seems reasonable to protect
the faith of the people of the community under the Article 25.
There
have been instances when the parliament of India has tried to pose restrictions
on the practices allowed by religion. The introduction and the subsequent
enactment of the Hindu Civil Code Bills (Hindu
Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu
Adoptions and Maintenance Act) in 1955-56 can be seen in those light. However, it must be noted that the
purpose behind these acts was to unify the Hindu community and hence these laws
were aimed at the social welfare by improving the position of women, reducing
the distinctions on the bases of caste, introduction of divorces in the Hindu
Community and others. On the other hand, the religious belief of the Jehovah's Witnesses community which prohibits them from singing the National Anthem has
no social malice and hence, it should be respected.
The
Constitution of India protects religious faith of each sect which is organised
under it. Such a shield is necessary for the continuance of that community and
the sustenance of any government under which a community has put its faith. Any
law made by any legislative body, or any rules made by the order of an
executive body must make sure that the religious faith of any sect remains
sacrosanct. Moreover, only the judiciary has the power to interpret the law in
India. Hence, the Courts have been given the power to strike down any law which
violates the Fundamental Rights of the citizens or any other tenets of the
Constitution. The given verdict by the Supreme Court of India surpassing the circulars
issued by the Director of Public Instruction, Kerala not only protected the
rights of the people to follow and profess their religion but also restored the
faith of the Jehovah's Witnesses sect in
the judiciary and the Constitution of India.
P.S.
This write-up was a part of my assignment for the course on Law at the Young India
Fellowship. I was required to analyze the PIL Bijoe Emmanuel & Ors vs State
of Kerala & Ors (11 August 1986) which deals with a conflict between the Freedom
to profess Religion and respect for the National Anthem.
