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Full Case Details
O. CHINNAPPA 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
unpatriotic of the children not to sing the National Anthem. He happened 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 thats the children are other than
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 matters of conscience, which
though better left alone, are sensitive and emotionally evocative. So, under the instructions of
Deputy Inspector of Schools, the Headmistress 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 Headmistress
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 Article 136 of the
Constitution.
- We are afraid the High Court misdirected itself and went off at a tangent. They
considered, in minute detail, each and every word and thought of the National Anthem and
concluded that there was no word or thought in the National Anthem which could offend
anyone’s religious susceptibilities. But 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 Banner 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 occasions to show 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 join any rituals except it be in their prayers to Jehovah their
God.”
350 - That the petitioners truly and conscientiously believe what they say 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 these 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 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 pronouncements elsewhere. - In The New Encyclopaedia Britannica (Macropaedia) Vol. 10, Page 538, after
mentioning that Jehovah’s Witnesses are “the adherents of the apocalyptic sect organized by
Charles Taze Russell in the early 1870’s”, it is further mentioned:
“They believe that the Watch Tower Bible and Tract Society, their legal agency
and publishing arm, exemplifies the will of God and proclaims the truths of the Bible
against the evil triumvirate of organized religion, the business world, and the State. . .
. The Witnesses also stand apart from civil society, refusing to vote, run for public
office, serve in any armed forces, salute the Flag, stand for the national anthem, or
recite the pledge of allegiance. Their religious stands have brought clashes with
various governments, resulting in law suits, mob violence, imprisonment, torture, and
death. At one time more than 6000 Witnesses were inmates of Nazi concentration
camps. Communist and Fascist States usually forbid Watch Tower activities. In the
US the society has taken 45 cases to the Supreme Court and has won significant
victories for freedom of religion and speech. The Witnesses have been less successful
in claiming exemptions as ministers from military service and in seeking to withhold
blood transfusion 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 decided by the Australian High Court. It is stated:
“Jehovah’s Witnesses are an association of persons loosely organized 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 has 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 themselves entirely to serving God’s will and purpose and He will
come to earth again (His second coming has already begun) and will overthrow 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, unrighteously 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,
which is “The Theocracy that they have no part in the political affairs of the world
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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 Witnesses. Accordingly they refuse to
take an oath of allegiance to the King or other constituted human authority.” - 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) shall prevent a State
from making any law, insofar as such law imposes reasonable restrictions on the exercise of
the right conferred by the said sub-clause 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. Article
25(1) guarantees to all persons freedom of conscience and the right freely to profess, practise
and propagate religion, subject to order, 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 Articles 19(1)(a) and 25 of the
Constitution. - We may at once say that there is no provision 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. It is
true Article 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. - Parliament has not been unmindful of ‘National Honour’. The Prevention of Insults to
National Honour Act was enacted in 1971. While Section 2 deals with insult to the Indian
National Flag and the Constitution of India, Section 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 may extend to three years, or with fine, 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 Section 3 of
the Prevention 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 purpose of carrying into effect the provisions of
the Act and in particular to provide for standards of education and courses of study. The
Kerala Education Rules have been made pursuant to the powers conferred by the Act. Chapter
VIII of the Rules provides for the organisation of instruction and progress of pupils. Rule 8 of
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Chapter VIII 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
susceptibilities of the peoples generally. 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 guilty of deliberate insubordination,
mischief, fraud, malpractice in examinations, conduct likely to cause unwholesome influence
on other pupils etc. It is not suggested that the present appellants have ever been found guilty
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 1961 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 under the head patriotism it
is mentioned :
“Patriotism - Environment should be created in the school to develop the right kind of
patriotism in the children. Neither religion nor party nor anything of this kind should
stand against one’s love of the country. - For national integration, the basis must be the school.
- 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 the National Pledge before marching back to
the classes.” - Apart from 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 lightly 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 compulsion would clearly contravene the rights guaranteed by Article 19(l)(a) and
Article 25(1). - We have referred to Article 19(1)(a) which guarantees to all citizens freedom of
speech and expression and to Article 19(2) which provides that nothing in Article 19(1)(a)
shall prevent a State from making any law, insofar as such law imposes reasonable
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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 now well settled that any law which be made under
clauses (2) to (6) of Article 19 to regulate the exercise of the right to the freedoms guaranteed
by Article 19(1)(a) to (e) and (g) must be ‘a law’ having statutory force and not a mere
executive or departmental instruction. In Kharak Singh v. State of U.P. [AIR 1963 SC 1295,
1299], the question arose whether a police regulation which was a mere departmental
instruction, having no statutory basis could be said to be a law for the purpose of Article 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 Section 12 of the Indian Police Act he gave this up and
conceded that the regulations contained in Chapter XX had no such statutory basis
but were merely executive or departmental instructions framed for the guidance of
the police officers. They would not therefore be “a law” which the State is entitled to
make under the relevant clauses (2) to (6) of Article 19 in order to regulate or curtail
fundamental rights guaranteed by the several sub-clauses of Article 19(1), nor would
the same be “a procedure established by law” within Article 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 entitled to the relief of mandamus which he seeks, to restrain the
State from taking action under the regulations.” - 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 a citizen’s Fundamental Right under Article
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 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 Article 19(1)(a). In Kameshwar Prasad v. State of Bihar
[AIR 1962 SC 1166], a Constitution Bench of the Court had to consider the validity of Rule
4-A 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 tranquillity. Examining the action of the Education Authorities in the light of Kharak
Singh v. State of U.P. and Kameshwar Prasad v. State of Bihar, we have no option but to
hold that the expulsion of the children from the school for not joining the singing of the
National Anthem though they respectfully stood up in silence when the Anthem was sung was
violative of Article 19(l)(a). - We see that the right to freedom of conscience and freely to profess, practise 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; or (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. Thus while on
the one hand Article 25(1) itself expressly subjects the light guaranteed by it to public order,
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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 practise and to provide for
social welfare and reform, even if such regulation, restriction or provision affects the right
guaranteed by Article 25(1). Therefore, whenever the Fundamental Right to freedom of
conscience 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. It is the duty and function of the court so
to do. 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. - 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, practise and propagate religion’. - Shri Vishwanath Iyer and Shri Poti, who appeared for the respondents suggested that
the appellants, who belonged but to a religious denomination could not claim the
Fundamental Right guaranteed by Article 25(1) of the Constitution. They purported to rely
upon a sentence in the judgment of this court in Acharya Jagdishwaranand v. Commissioner
of Police, Calcutta [AIR 1984 SC 51]. The question in that case was whether the Ananda
Margis had a fundamental right within the meaning of Article 25 or Article 26 to perform
Tandava dance in public streets and public places. The court found that Ananda 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 practice 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. This sentence appears to have crept into the judgment by some slip. It is not a sequiter
to the reasoning of the court on any of the issues. In fact, in the subsequent paragraphs, the
Court has expressly proceeded to consider the claim of the Ananda Marga to perform
Tandava dance in public streets pursuant to the right claimed by them under Article 25(1). - We, therefore, find that the Fundamental Rights of the appellants under Articles
19(1)(a) and 25(1) have been infringed and they are entitled to be protected. We allow the
appeal, set aside the judgment of the High Court and direct the respondent authorities to readmit 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.
