Bijoe Emmanuel & Ors Vs. State of
Kerala & Ors [1986] INSC 167 (11 August 1986)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) DUTT, M.M. (J)
CITATION: 1987 AIR 748 1986 SCR (3) 518 1986
SCC (3) 615 JT 1986 115 1986 SCALE (2)217
CITATOR INFO:
RF 1988 SC1208 (25)
ACT:
Constitution of India, Art. 19(1)(a) and
25(1)-National Anthem-Singing of-Compulsion despite genuine conscientious
religious objection -Whether contravenesy Fundamental Rights.
Prevention of Insult to National Honour Act,
1960, s.3- National Anthem-Singing of-Refusal on genuine conscientious
religious faith-Whether offence committed.
Kerala Education Act, 1959 read with the
Kerala Education Rules, 1959, s. 36, Chapter IX Rule 6-National Anthem .
Singing of-Refusal by school pupils on genuine conscientious religious
faith-Whether misconduct entitling censure suspension dismissal of pupil.
HEADNOTE:
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,
according to them, it is against the tenets of their religious faith-not the
words or the thoughts of the National Anthem-but the singing of it.
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 the 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 519 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
Court, ^
HELD: 1.1. The Fundamental Rights of the
appellants under Art. 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 the necessary
facilities. [538D-E; 539-C-D]
1.2 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 in s. 3 of the
Prevention of Insults to National Honour Act. [527B-G]
2.1 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, in so far as such law imposes reasonable restrictions on the exercise of
the said right. Art. 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.
Art. 51-A(a) of the Constitution enjoins a
dub on every citizen of India "to abide by the Constitution and respect
its ideals and institutions, the National Flag and the National Anthem".
[526G-H; 527C] 520
2.2 While on the one hand, Art. 25(1) itself
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 and to provide for social welfare and reform, even if such
regulation, restriction or provision affects the right guaranteed by Art.
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. [531G- H;
532A-B]
2.3 Any law which may be made under clauses 2
to 6 of Art. 19 to regulate the exercise of the right to the freedoms
guaranteed by Art. 19(1)(a) to (e) and (g) must be 'a law' having statutory
force and not a mere executive or departmental instructions. [529E-F] The two
circulars on which the Department, in the instant case, has placed reliance
have no statutory basis and are mere departmental instructions. They cannot,
therefore, form the foundation of any action aimed at denying to citizens
Fundamental Right under Art. 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 Art. 19(1)(a). 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 Art. 19(1)(a) and Art.
25(1). [530C-E; 529C] Kharak Singh v. State
of U.P., AIR 1963 SC 1295 and Kameshwar Prasad v. The State of Bihar, [1962]
Supp. SCR 369 relied upon.
3. The Kerala Education Act contains no
provision of relevance and the appellants in the present case have never been
found guilty of 521 misconduct such as that described in Chapter IX, Rule 6 of
the Kerala Education Rules. On the other hand, the report of the Commission, is
to the effect that the children have always been well-behaved, law-abiding and
respectful. [528 B-C]
4. 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. [533F-G] 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. [523C-D] Adelaide Company of Jehovah's Witnesses v. The
Commonwealth, 67 CLR 116; Minersville School District v. Gebitis, 84 Law Ed. US
1376; West Virginia State Board of Education v. Barnette, 87 Law Ed. 1628;
Donald v. The Board of Education for the City Hamilton, 1945 Ontario Reports
518, Sheldon v. Fannin, 221 Federal Suppl. 766; The Commissioner Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, [1954] SCR 1005; Rati Lal Panachand Gandhi v. The State of Bombay &
Ors., [1954] SCR 1055; SP Mittal etc. etc. v. Union of India
Commissioner, Calcutta, AIR 1984 SC 51
referred to.
& CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 870 of 1986 From the Judgment and order dated 7.12.1985 of the
Kerala High Court in W.A . No. 483 of 1985.
F.S. Nariman, T.S. Krishnamurthy Iyer, K.J.
John and M.
Jha for the Appellants.
G. Viswanatha Iyer and Mrs. Baby Krishnan for
Respondent Nos. I to 3.
522 P.S. Poti, E.M.S. Anam and James Vincent
for the Respondents.
The Judgment of the Court was delivered by
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. that 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 Head Mistress 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 Head Mistress 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 Art. 136 of the Constitution.
We are afraid the High court misdirected
itself and went off at a tengent. They considered, in minute detail, each and
every word and thought of the National Anthem and concluded that there was no
word 523 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 banna 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. " 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", 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 6,000
Witnesses were inmates of Nazi concentration camps, Communist and Fascist
States usually forbid Watch Tower activities. In the U.S. 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 524 and in seeking to withhold
blood transfusions 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 organised 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 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." "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 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 Witnes- 525 ses. Accordingly they refuse to
take an oath of allegiance to the King or other constituted human
authority." The case of Adelaide Company of Jehovah's Witnesses v.
The Commonwealth (supra) arose out of an action
to restrain the Commonwealth of Australia from enforcing the National Security
(Subversive Associations) Regulations to the Jehovah's Witnesses.
Minersville School District v. Gobitis, 84
Law. Ed. US 1375 and West Virginia State Board of Education v. Barnette, 87 Law
Ed. 1628 are two cases decided by the American Supreme Court in which Jehovah's
witnesses claimed that they could not be compelled to salute the flag of the
United States while reciting pledge of allegiance. In the latter case, Jackson,
J. referred to the particular belief of the Witnesses which was the subject
matter of that case, as follows:
"The Witnesses are an unincorporated
body teaching that the obligation imposed by law of God is superior to that of
laws enacted by temporal government. Their religious beliefs include a literal
version of Exodus, Chapter XX, verses 4 and 5, which says "Thou shall not
make upto the any graven image, or any likeness of anything that is in heaven
above, or that is in the earth beneath, or that is in the water under the
earth;
thou shalt not bow down thyself to them, nor
serve them." They consider that the flag is an "image" within
this command. For this reason they refuse to salute Donald v. The Board of
Education for the City Hamilton 1945 Ontario Reports 518 is a case decided by
the Court of Appeals of Ontario where the objection by Jehovah's Witnesses was
to saluting the flag and singing National Anthem. The Court referred to the
following belief of the Jehovah's Witnesses:
"The appellants, father and sons, are
affiliated with "Jehovah's Witnesses" and believe that saluting the
flag and joining in the singing of the national anthem are both contrary to and
forbidden by command of Scripture-the former because they consider the flag an "image"
within the literal meaning of Exodus, Chapter XX verses 4 and 5, and the latter
because, while they respect the King and the State, the prayer voiced in this
anthem is not compatible 526 with the belief and hope which they hold in the
early coming of the new world, in the government of which present temporal
states can have no part." Sheldon v. Fannin, 221 Federal Supp. 766 a case
decided by the United States District Court of Arizona also arose out of the
refusal of Jehovah's Witnesses to stand when the National Anthem was sung. The
Court observed:
"This refusal to participate, even to
the extent of standing, without singing, is said to have been dictated by their
religious beliefs as Jehovah's Witnesses, requiring their literal acceptance of
the Bible as they Word of Almighty God Jehovah.
Both precedent and authority for their
refusal to stand is claimed to be found in the refusal of three Hebrew children
Shadrach, Meshach and Abednege, to bow down at the sound of musical instruments
playing patriotic- religious music throughout the land at the order of King
Nebuchadnezzar of ancient Babylon.. (Daniel 3:
1328) For a similar reason, members of the
Jehovah's Witnesses sect refuse to recite this Pledge of Allegiance to the Flag
of the United States viewing this patriotic ceremony to be the worship of a
graven image. (Exodus 20: 4-5).
However, by some process of reasoning we need
not tarry to explore, they are willing to stand during the Pledge of
Allegiance, out of respect for the Flag as a symbol of the religious freedom
they enjoy (See Board of Education v. Barnette, 319 US 624 (1943)." It is
evident that Jehovah's Witnesses, wherever they are, do hold religious beliefs
which may appear strange or even bizarre to us, but the sincerity of their
beliefs is beyond question. Are they entitled to be protected by the
Constitution? Article 19(1)(a) of the Constitution guarantees to all citizens
freedom of speech and expression, but Article 19(2) provides that nothing in
Art. 19(1)(a) shall prevent a State from making any law, in so far 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. Art. 25(1) guarantees to all persons freedom of
conscience and the 527 right freely to profess, practise and propogate
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 Arts. 19(1)(a) and 25 of the Constitution.
We may at once say that there is no
provisions 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 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.
Parliament has not been unmindful of 'National
Honour'.
The Prevention of Insults to National Honour
Act was enacted in 1971. While s. 2 deals with insult to the Indian National
Flag and the Constitution of India, 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 so
as to constitute the offence mentioned in s. 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 Chapter VIII 528 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 guility of deliberate in-subordination, mischief,
fraud, mal-practice in examinations, conduct likely to cause unwholesome
influence on other pupils etc. It is not suggested that the present appellants
have ever been found guility 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
1. Environment should be created in the
school to develop the right kind of patriotisms in the children. Neither
religion nor party nor anything of this kind should stand against one's love of
the country.
2. For national integration, the basis must
be the school.
3. 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 529 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 rightly 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 contavene the rights guaranteed by Art. 19(1)(a) and Art. 25(1).
We have referred to Art. 19(1)(a) which
guarantees to all citizens freedom of speech and expression and to Art.
19(2) which provides that nothing in Art.
19(1)(a) shall prevent a State from making any law, in so far as such law
impose 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 to regulate the exercise of the right
to the freedoms guaranteed by Art. 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 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 Art. 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 s.
12 of the Indian Police Act he gave this up
and conceded that the regulations contained in Ch. 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 530 to make under the relevant cls. (2) to (6) of
Art.
19 in order to regulate or curtail
fundamental rights guaranteed by the several sub-clauses of Art. 19(1), not
would the same be "a procedure established by law" within Art. 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 to
citizen's Fundamental Right under Art. 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 Art. 19(1)(a). In
Kameshwar Prasad v. The State of Bihar, [1962] SUPP. SCR 369 a Constitution
Bench of the court had to consider the validity of Rule 4A 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 tranquility. The court said, "No doubt, if the rule were so framed
as to single out those types of demonstration which were likely to lead to a
disturbance of public tranquility or which would fall under the other limiting
criteria specified in Art. 19(2) the validity of the rule could have been
sustained. The vice of the rule, in our opinion, consists in this that it lays
a ban on every type of demonstration-be the same however innocent and however
incapable of causing a breach of public tranquility and does not confine itself
to those forms of demonstrations which might lead to that result."
Examining the action of the Education Authorities in the light of Kharak Singh
v. State of Uttar Pradesh (supra) and Kameshwar Pradesh v. State of Bihar
(supra) we have no option but to hold that the expulsion of the children from
the school not joining the singing of 531 the National Anthem though they
respectfully stood up in silence when the Anthem was sung was violative of Art.
s19(1)(a).
Turning next to the Fundamental Right
guaranteed by Art. 25, we may usefully set out here that article to the extent
relevant:
"25(1) Subject to public order, morality
and health and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess, practise and
propagate religion.
(2) Nothing in this article shall affect the
operation of any existing law or prevent the State from making any law- (a)
regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice;
(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." (Explanations I and II not extracted
as unnecessary) Article 25 is an article of faith in the Constitution,
incorporated in recognition of the principle that the real test of a true
democracy is the ability of even an insignificant minority to find its identity
under the country's Constitution. This has to be borne in mind in interpreting
Art. 25.
We see that the right to freedom of
conscience and freely to profess, practise and propagate religion guaranteed by
Art. 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,
Art. 25(1) itself 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 practise and to provide for social welfare and
reform, even if such regulation, restriction or provision affects the right
guaranteed by Art. 25(1). Therefore, 532 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 practice 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 Art. 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 may refer here to the
observations of Latham, CJ. in Adelaide Company of Jehovah's Witnesses v. The
Commonwealth (supra), a decision of the Australian High Court quoted by Mukherje,
J. in the Shrirur Mutt case. Latham, CJ. had said:
"The Constitution protects religion
within a community organized under a Constitution, so that the continuance of
such protection necessarily assumes the continuance of the community so
organized. This view makes it possible to reconcile religious freedom with
ordered government. It does not mean that the mere fact that the Commonwealth
Parliament passes a law in the belief that it will promote the peace, order and
good government of Australia precludes any consideration by a court of the
question whether or not such a law infringes religious freedom. The final
determination of that question by Parliament would remove all reality from the
Constitutional guarantee. That guarantee is intended to limit the sphere of
action of the legislature. The interpretation and application of the guarantee
cannot, under our Constitution, be left to Parliament, If the - guarantee is to
have any real significance it must be left to the courts of justice to
determine its meaning and to give effect to it by declaring the invalidity of
laws which infringes it and by declining to enforce them. The courts will
therefore have the responsibility of determining whether a particular law can
fairly be regarded, as a law to protect the existence of the community, or
whether, on the other hand, it is a law "for prohibiting the free exercise
of any religion." The word "for" shows that the purpose of the
legislation in question may properly be taken into account in determining
whether or not it is a law of the prohibited character." 533 What Latham,
CJ. has said about the responsibility of the court accords with what we have
said about the function of the court when a claim to the Fundamental Right
guaranteed by Art. 25 is put forward.
The meaning of the expression 'Religion' in
the context of the Fundamental Right to freedom of conscience and the right to
profess, practice and propagate religion, guaranteed by Art. 25 of the
Constitution, has been explained in the well known cases of The Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt, [1954] SCR 1005 Rati Lal Panachand Gandhi v. The State of Bombay
& Ors., [1954] SCR 1055 and S. P. Mittal Etc. Etc. v. Union of India &
Ors, [1983] SCR 729. It is not necessary for our present purpose to refer to
the exposition contained in these judgments except to say that in the first of
these cases Mukherjea, J.
made a reference to "Jehova's
Witnesses" and appeared to quote with approval the views of Latham, CJ.,
of the Australian High Court in Adelaide Company v. The Commonwealth (supra)
and those of the American Supreme Court in West Virginia State Board of
Education v. Barnettee (supra). In Ratilal's case we also notice that
Mukherjea, J.
quoted as appropriate Davar, J.'s following
observations In Jarnshedji v. Soonabai, 23 Bomaby ILR 122:
"If this is the belief of the Community
and it is proved undoubtedly to be the belief of the Zoroastrian community,-a
secular Judge is bound to accept that belief-it is not for him to sit in
judgement on that belief, he has no right to interfere with the conscience of a
doner who makes a gift in favour of what he believes to be the advancement of
his religion and the welfare of his community or mankind." We do endorse
the view suggested by Davar J's observation that 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. Our 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 Minersville School Dist. v. Gobitis (supra)
the question arose whether the requirement of participation by pupils and
public schools in the ceremony of saluting the national flag did not infringe
the liberty guaranteed by the 14th amendment, in the case of a pupil who re-
534 fused to participate upon sincere religious grounds.
Frankfurter, J. great exponent of the theory
of judicial restrain that he was speaking for the majority of the United States
Supreme Court upheld the requirement regarding participation in the ceremony of
flag salutation primarily on the ground, "The wisdom of training children
in patriotic impulses by those compulsions which necessarily prevade so much of
the educational process is not for our independent judgment ..... For
ourselves, we might be tempted to say that the deepest patriotism is best
engendered by giving unfettered scope to the most crochety beliefs.. But the
courtroom is not the arena for debating issues of educational policy. It is not
our province to choose among competing considerations in the subtle process of
securing effective loyalty to the traditional ideals of democracy, while
respecting at the same time individual idiosyncracics among a people so
diversified in racial origins and religious allegiances so to hold would in
effect make us the school board for the country. That authority has not been
giving to this Court. not should we assume it." Frankfurter, J's view, it
is seen, was founded entirely upon his conception of judicial restraint. In
that very case Justice Stone dissented and said, "It (the Government) may
suppress religious practices dangerous to morals, and presumably those also
which are inimical to public safety, health and good order. But it is a long
step, and one which I am unable to take, to the position that Government may,
as a supposed, educational measure and as a means of disciplining young, compel
affirmations which violate their religious conscience." Stone, J. further
observed:
"The very essence of the liberty which
they guaranteed is the freedom of the individual from compulsion as to what he
shall think and what he shall say, at least where the compulsion is to bear
false witness to his religion" 535 It was further added:
"History teaches us that there have been
but few infringements of personal liberty by the State which have not been
justified, as they are here, in the name of righteousness and the public good,
and few which have not been directed, as they are now, had politically helpless
manners." We do not think that it is necessary to consider the case of Gobitis
at greater length as the decision was overruled very shortly after it was
pronounced by the same' court in West Virginia State Board of Education v.
Barnette (supra).
Justices Black and Douglas who had agreed
with Justice Frankfurter in the Gobitis's case retraced their steps and agreed
with Justice Jackson who gave the opinion of the court in West Virginia State
Board of Education v. Barnette (supra). Justice Jackson in the course of his
opinion observed, It is also to be noted that the compulsory flag salute and
pledge requires affirmation of a belief and an attitude of mind. It is not
clear whether the regulation contemplates that pupils forego any contrary
convictions of their own and become unwilling converts to the prescribed
ceremony or whether it will be acceptable if they simulate assent by words
without belief and by a gesture barran of meaning. It is now a commonplace that
censorship or suppression of expression of opinion is tolerated by our
Constitution only when the expression presents a dear and present danger of
action of a kind the State is empowered to prevent and punish. It would seem
that involuntary affirmation could be commanded only on even more immediate and
urgent grounds than silence. But here the power of compulsion is invoked without
any allegation that remaining passive during a flag salute ritual creates a
clear and present danger that would justify an effort even to muffle
expression. To sustain the compulsory flag salute we are required to say that a
Bill of Rights which guards the individual's right to speak his own mind, left
it open to public authorities to compel him to utter what is not in his
mind." Justice Jackson referred to Lincoln's famour dilemma 'must a
government of necessity be too strong for the liberties of its people, or too
weak to maintain its own existence' and added, 536 "It may be doubted
whether Mr. Lincoln would have thought that the strength of government to
maintain itself would be impressively vindicated by our confirming power of the
state to expel a handful of children from school. Such over simplification, so
handy in political debate, often lacks the precision necessary to postulates of
judicial reasoning. If validly applied to this problem, the utterance cited
would resolve every issue of power in favour of those in authority and would
require us to override every liberty thought to weaken or delay execution of
their policies.
Government of limited power need not be
anemic government. Assurance that rights are secure tends to diminish fear and
jealousy of strong government, and by making us feel safe to live under it
makes for its better support.
Without promise of a limiting Bill of Rights
it is doubtful if our Constitution could have mustered enough strength to
enable its ratification. to enforce those rights today is not to choose weak
government over strong government. It is only to adhre as a means of strength
to individual freedom of mind in preference to officially disciplined
uniformity for which history indicates a disappointing and disastrous end."
Dealing with the argument that any interference with the authority of the
school Board would in effect make the court the School Board for the country as
suggested by Justice Frankfurter, Justice Jackson said, "There are village
tyrants as well as village Hampdens, but none who acts under color of law is
beyond reach of the Constitution .. We cannot, because of modest estimates of
our competence in such specialities as public education, withhold the judgment
that history authenticates as the function of this court when liberty is
infringed." Justice Jackson ended his opinion with the statement "If
there is any fixed star in our Constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein. If there are any circumstances which permit
an exception, they do not now occur to us.
537 We think the action of the local
authorities in compelling the flag salute and pledge transcends constitutional
limitations on their power and invades the sphere of intellect and spirit which
it is the purpose of the First Amendment to our Constitution to reserve from
all official control." Sheldon v. Fannin (supra) was a case where the
pupils refused even to stand when the National Anthem was sung. We do not have
to consider that situation in the present case since it is the case of the
appellants and it is not disputed that they have always stood up and they will
always stand up respectfully when the National Anthem is sung.
Donald v. Hamilton Board Education (supra)
was again a case of objection by Jehovah's witnesses to flag salutation and
singing the national anthem. Gillanders, J.A., said:
"There is no doubt that the teachers and
the school board, in the case now being considered, in good faith prescribed
the ceremony of the flag salute only with the thought of inculcating respect
for the flag and the Empire or Commonwealth of Nations which events of recent
years have given more abundant reason than ever before to love and respect. If
I were permitted to be guided by my personal views, I would find it difficult
to understand how any well-disposed person could offer objection to joining in
such a salute on religious or other grounds. To me, a command to join the flag
salute or the singing of the national anthem would be a command not to join in
any enforced religious exercise, but, viewed in proper perspective, to join in
an act of respect for a contrary principle, that is, to pay respect to a nation
and country which stands for religious freedom, and the principle that people
may worship as they please, or not at all." "But, in considering
whether or not such exercises may or should, in this case, be considered, as
having devotional or religious significance, it would be misleading to proceed
on any personal views on what such exercises might include or exclude."
After referring to Jackson, J's opinion in West Virginia State Board of
Education v. Barnette (supra) and some other cases, it was further observed,
538 "For the Court to take to itself the right to say that the exercises
here in question had no religious or devotional significance might well be for
the Court to deny that very religious freedom which the statute is intended to
provide. " "It is urged that the refusal of the infant appellants to
join in the exercises in question is disturbing and constitutes conduct
injurious to the moral tone of the school. It is not claimed that the appellants
themselves engaged in any alleged religious ceremonies or observations, but
only that they refrained from joining in the exercises in question
.............. To do just that could not, I think be viewed as conduct
injurious to the moral tone of the school or class." 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, practice and
propagate religion.
Shri Vishwa Nath Iyer and Shri Potti, who
appeared for the respondents suggested that the appellants, who belonged but to
a religious denomination could not claim-the Fundamental Right guaranteed by
Art. 25(1) of the Constitution. They purpored to rely upon a sentence in the
judgment of this court in Jagdishwaranand v. Police Commissioner, Calcutta, AIR
1984 SC 51. The question in that case was whether the Ananda Margis had a
fundamental right within the meaning of Art. 25 or Art 26 to perform Tandava
dance in public streets and public places. The Court found that Anand 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 practise
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. In course of the discussion, at one place, there is
found the following sentence:
"Mr. Tarkunde, Counsel for the
petitioner had claimed 539 protection of Art. 25 of the Constitution, but in
view of our finding that Ananda Marga was not a separate religion. application
of Art. 25 is not attracted." This sentence appears to have crept into the
judgment by some slip. lt is not a sequitur 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
Art. 25(1).
We, therefore, find that the Fundamental
Rights of the appellants under Art. 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 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 the
necessary facilities. We only wish to add:
our tradition teaches tolerance; our
philosophy preaches tolerance; our constitution practices tolerance; let us not
dilute it.
The appellants are entitled to their costs.
M.L.A. Appeal allowed.
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