Bijoe Emmanuel vs State Of Kerala | National Anthem Case – Judiciary Exam – Free PDF

Bijoe Emmanuel vs State Of Kerala,1986

Fact of the case

• The three child-appellants, Bijoe, Binu Mol and Bindu Emmanuel, were followers of Jehovah’s Witnesses.
• Daily, during the morning Assembly in school, when the National Anthem ‘Jana Gana Mana’ was sung, they stood respectfully but they did not sing.
• Reason- 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
• July, 1985, a Member of the Legislative Assembly took notice
• thought it was unpatriotic of the children not to sing the National Anthem.
• put a question in the Assembly. A Commission was appointed to enquire and report.
• Commission reported that the children are ‘law- abiding’ and that they showed no disrespect to the National Anthem. They have always stood up in respectful silence.
• under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the children from the school from July 26, 1985. 
• 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 Moved to SC through special leave under Art. 136 of the Constitution.

Issues

• Whether the expulsion of the children from the school infringes the rights guaranteed under Article 19(1) and Article 25 of the Indian Constitution?
• Whether the expulsion of the students from a school is justified as per Kerala Education Act (Section 36) and the Rules there under and Section 3 of Prevention of Insults to National Honour Act 1971?

SC Also ventured in to the belief system of the Jehovah’s

• “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 such as organized political, religious, and financial bodies. Christ, they believe, came to earth to redeem all 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.
• Accordingly they refuse to take an oath of allegiance to the King or other constituted human authority.

Legal aspect of the case

• Article 51A(a)
• It 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 institutions, 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.

The Prevention of Insults to National Honour Act,1971.

• 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 imprisonment 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

Rules under the Kerala Education Act

• Rule – National Anthem. As a rule, the whole school should participate in the singing of the National Anthem.
• Rule- “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 the National Pledge before marching back to the classes.”
•  Art. 19(1)(a) guarantees to all citizens freedom of speech and expression
•  Art. 19(2) provides that nothing in Art. 19(1)(a) shall prevent a State from making any law, imposing reasonable restrictions on the exercise of the right conferred by Art. 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 now well settled that any law which may be made under clauses (2) to (6) of Art. 19 must be ‘a law’ having statutory force and not a mere executive or departmental instruction.
• circulars have no legal sanction behind them in the sense that they are not issued under the authority of any statute.
•  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.”
• on the one hand, Art. 25  provides freedom of  conscience and the right freely to profess, practise and propagate religion.
• On the other hand it expressly subjects the right guaranteed 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 make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.
• Therefore, whenever the Fundamental Right is claimed to be infringed, it is the duty and function of the Court to examine the matter.
• 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. 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.
• In the instant case, 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 first time or out of any unpatriotic sentiment Jehovah’s Witnesses, as they call themselves, appear to have always expressed and stood up for such beliefs all the world over.

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