Bijoe Emmanuel & Ors. v. State Of Kerala & Ors.

After reading this case, you will learn that the Supreme Court upheld the freedom of expression that no one shall be compelled to affirm a belief, which he/she does not follow. The case also discusses when section 3 of the Prevention of insults to National Honour Act can be invoked.
CITATION1978 AIR 748
COURTSupreme Court of India
JUDGES/CORAMJustice O. Chinnappa Reddy
DATE OF JUDGEMENT11.08.1986

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 belief 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. However, 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 the fact that this was not a sudden decision, it was their practice for so long time, which the court focused on. Even compelling someone to speak or express the feeling which was not real was also violation of Article 19 (1) and restricting their religious practice by forcing them to do act which was against to their policy and morals affected the right conferred under Article 25 of the Constitution read with the freedom of express.         

Facts

The facts of the case are as follows: The appellants, three children, belonged 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 had been against the tenets of their religious faith which preach that none utters 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.

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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

The main issues in the case were:

  1. Whether or not the act of school Head Mistress and Deputy Inspector of education violated Article 19(1)(a) and 25 (1).
  2. Whether or not the act of children was an offence under the section 3 of the Prevention of Insults to National Honour Act.

Summary of court decision and judgment

The Fundamental Rights of the appellants under Article 19(1) (a) and 25(1) had been infringed and they were 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 did not join the singing of the National Anthem in the morning assembly though they did stand  respectfully when the National Anthem was sung,  was a violation of the fundamental right to freedom of conscience and freely to profess, practice and propagate religion.

Therefore, the respondent authorities were 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.

The Court observed that there was no provision of law which obliged anyone to sing the National Anthem nor was it disrespectful to the National Anthem if a person who stood up respectfully when the National Anthem was sung did not join the singing. Proper respect was shown to the National Anthem by standing up when the National Anthem is sung. The Court held that 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.

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Analysis

The 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 the religion and every person in India tried hard to get this, was baseless.

Secondly, the author agreeing on the point of the Supreme Court that their right to education denied on grounds of the disrespect towards the national anthem by the Head mistress was not justifiable. The arguments and the judgement focused on the Article 19 (1)(a) and 25 stating that they are individual freedom.

The Constitution framers stated that the right to freedom of speech and expression was only to an extent 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. It was held 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 case also, Court changed its decision by referring this case that there was no provision stating that singing was mandatory but respecting by standing was enough. Section 3 of the Prevention of Insults to National Honour Act can be invoked only when the person interrupt or disrupt that song in intention to insult.

From the point of common man this case may be unnecessary but from the point of the jurist, it is a case that explains patriotism and unity. Because there are still so many people who are proud to talk about their nationality and show there respect even though their religion doesn’t allow.

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