Bijoe Emmanuel vs. State of Kerela

Cituation: 1987 AIR 748
Court: Supreme Court of India
Bench: Reddy, O. Chinnappa (J)
Date of Judgment: Aug 11, 1986

Comment:

Introduction

Fair dealing relies on national Anthem and ‘right to the freedom of speech & expression along with individual religious freedom’. Primarily the high court failed to see the religious believe of the individual by stating that “no nationalism will affect the religious right” but this religion in all over world is polity neutrality follower and they strongly spread the faith on god instead of nationality or other things. But the Supreme Court concentrates the single fact that “they showed minimum respect by standing and there is no disturbance made by them for this long year”. As well as this is not the sudden decision it’s their practice for so long time which the court focused to it. Even compelling someone to speech or express the feeling which is not real also violation of Article 19 (1) and restricting their religious practice by forcing them to do act which is against to their policy and morals affect the right conferred under Article 25 of the constitution read with the freedom of express.

Facts

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 it has been against the tenets of their religious faith which peach that none utter any words or the thoughts of the National Anthem. They desisted from actual singing only because of their aforesaid honest belief and conviction but they used to stand up in respectful silence daily, during morning assembly when the National Anthem was sung. A Commission was appointed to enquire and report, and it reported that the children were “law abiding” 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 representation  by the  father of the children to the Education Authorities  requesting that the children  may be permitted to attend the school pending orders from the Government having failed, the appellants filed  a Writ  Petition in the High Court seeking an order  restraining the  authorities from  preventing them from attending the  school. A single Judge and then a Division Bench rejected the prayer of the appellants. Allowing the appeal by Special Leave, to this Supreme Court

 

Issues involved

  1. Whether the act of school Head Mistress and Deputy Inspector of education violates Article 19(1)(a) and 25 (1)?
  2. Whether the act of children is offence under the section 3 of the Act?

Summary of the Court decision and Judgement

The Fundamental Rights of the appellants under Article 19(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 morning 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 judgment  of the High Court is set aside and  the respondent  authorities are  directed to re- 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 necessary facilities. 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  sub domine section 3 under Prevention of Insults to National Honour Act.

Analysis

Author agrees with the point of Supreme Court as well as the high court. Firstly the point noted by the high court that nationality doesn’t affect the religious right because we brought this freedom irrespective of thee religion every person in India tried hard to get this. So nationality never prohibit the religious custom especially in India where the country given the religious freedom and announced themselves as the secular country.

Secondly the author agreeing the point of the Supreme Court in the contrarlo sensu that their right to education denied on grounds of the disrespect towards the national anthem by the Head mistress is not justifiable. The arguments and the judgement focused on the Article 19 (1) a and 25 stating that they are individual freedom. Still the court quoted that ‘they showed respect by standing’ if they failed to stand may be the verdict of the supreme court in question.

The constitution framers stated the right to freedom of speech and expression is only to extend which permitted by law referred to the constituent assembly and plain text of provision provide the same intention. Hence the judgement by high court referring the limitation on basis interest of public at large. This will affect the harmony of the unity.

Conclusion

Comparing this case with the new incident of ‘National Anthem in the theatre’ which mandated by court in 2016. This squashed it by the same court in 2018 that it is not necessary to show ‘the love for mother land in the place of entertainment’. In this place also court changed it decision by refereeing this case that there is no provision stating that sing is mandatory but respecting by stating is enough. This respect also not mandated even the national anthem Act sec 3 can be invoked only when the person interrupt or disrupt that song in intention to insult. In this case and recent case both verdict are relating the same sequence in different manner. In this children showed maximum of respect by standing but recent case they failed to show such respect itself but when there is valid reason to believe there is no any intention to threat to sovereignty. From the point of common man this case may be unnecessary but point of the jurist it’s a case which explaining the patriotism and unity. Because there are still so many people who is proud to say their nationality and show there respect even their religion doesn’t allowed. Showing minimum amount of respect towards the struggle of our freedom fighters have been matters here. Because salmon says the sovereignty is supreme.

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