Bijoe Emmanuel v. State of Kerala

Three schoolchildren of the Jehovah's Witnesses faith stood respectfully in silence during the National Anthem but did not sing it, because their religion forbade it. The school expelled them. The Supreme Court held that the expulsion violated Articles 19(1)(a) and 25(1).

Quick Revision

Parties

Bijoe, Binu Mol and Bindu Emmanuel — appellants (petitioners in the High Court). Three schoolchildren who are faithful of Jehovah's Witnesses.

State of Kerala and others — respondents. The State and its education authorities, whose Deputy Inspector of Schools instructed the Head Mistress to expel the children.

Procedural History

1. The Head Mistress expelled the children from school from 26 July 1985, on the instructions of the Deputy Inspector of Schools.
2. The father made representations asking that the children be allowed to attend school until the Government passed orders. The Head Mistress said she was helpless in the matter.
3. The children filed a writ petition (a petition for a court order against an authority) in the Kerala High Court. They asked for an order stopping the authorities from preventing them from attending school.
4. A single judge rejected the prayer.
5. A Division Bench rejected it too, by an order dated 7.12.1985 in W.A. No. 483 of 1985.
6. The children came to this Court by special leave (permission to appeal) under Article 136 in Civil Appeal No. 870.
7. This Court decided the appeal on 11 August 1986.

Facts

1. The three child-appellants are Bijoe, Binu Mol and Bindu Emmanuel. They are faithful of Jehovah's Witnesses and attend school.
2. Every day, at the morning assembly, the National Anthem Jana Gana Mana is sung. The children stand respectfully but do not sing.
3. They do not sing because their religious faith forbids it. Their objection is to the singing, not to the words or thoughts of the Anthem.
4. Their elder sisters attended the same school earlier and did the same for several years. No one worried, and no one thought it disrespectful or unpatriotic.
5. In July 1985 a gentleman who was a Member of the Legislative Assembly took notice. He thought the children's conduct unpatriotic and put a question in the Assembly.
6. A Commission was appointed to enquire and report. The Court did not have the report. It was told that the Commission found the children law-abiding and found that they showed no disrespect to the Anthem.
7. The Court records that it is nobody's case that the children behaved otherwise than well, or ever behaved disrespectfully during the Anthem. They have always stood in respectful silence.
8. Under the instructions of the Deputy Inspector of Schools, the Head Mistress expelled the children from 26 July 1985.
9. The authorities relied on two circulars of the Director of Public Instruction, Kerala. One is dated September 1961 and the other February 1970.
10. The first circular is a Code of Conduct for teachers and pupils. It says that, as a rule, the whole school should participate in singing the Anthem.
11. Paragraph 2 of the second circular makes a morning assembly compulsory every day. After the Anthem the whole school takes the National Pledge together.

Issues Raised

The judgment does not list issues in numbered form. The questions below follow the Court's own statements of what it had to examine.

1. Is the Kerala education authorities' ban on silence during the National Anthem, enforced by expulsion from school, consistent with the rights guaranteed by Articles 19(1)(a) and 25 of the Constitution?
2. Does any law require a person to sing the National Anthem, or is it disrespectful to stand respectfully without singing?
3. Does the Kerala Education Act or the Kerala Education Rules give authority to expel the children?
4. Can the two circulars, being departmental instructions, restrict the right under Article 19(1)(a)?
5. Do the children have a right under Article 25(1) not to sing, on account of their conscientiously held religious faith?
6. Can persons belonging to a religious denomination (a group with a common faith, organisation and name) claim the right under Article 25(1)?

Arguments Contended

The judgment does not separately set out the appellants' legal arguments. It records their case through their writ petition and through the facts the Court accepts.

For the appellants

1. The writ petition says that the students who are Witnesses do not sing the Anthem but stand up to show respect for it.
2. It says they desist from actual singing only because of their honest belief and conviction. Their religion does not permit them to join any rituals except in their prayers to Jehovah, their God.
3. Their objection is not to the language or sentiments of the Anthem. They do not sing the national anthem of any country, whether Jana Gana Mana, God save the Queen or the Star-spangled banner.
4. They asked the High Court to restrain the authorities from preventing them from attending school.

For the respondents

1. The Kerala Education Authorities relied on the two circulars of September 1961 and February 1970 issued by the Director of Public Instruction, Kerala.
2. Shri Vishwa Nath Iyer and Shri Potti argued that the appellants belong to a religious denomination. They said such persons could not claim the fundamental right guaranteed by Article 25(1).
3. For that argument they relied on a sentence in Jagdishwaranand v. Police Commissioner, Calcutta, AIR 1984 SC 51.
4. The judgment records no other argument for the respondents.

Court's Reasoning

The judgment of the Court was delivered by Chinnappa Reddy, J. It has no numbered paragraphs, so no paragraph numbers are cited. Steps follow the order of the judgment.

Opinion of Chinnappa Reddy, J. (for the Court)

The High Court's approach and the children's belief

1. Noted: the Court recites the facts of the expulsion. It says matters of conscience are sensitive and emotionally evocative, though better left alone.
2. Held: the High Court misdirected itself and went off at a tangent. It examined each word and thought of the Anthem and found nothing to offend religious susceptibilities. That was not the question.
3. Noted: the children do not object to the language or sentiments of the Anthem. They do not sing any national anthem, wherever they are.
4. Held: the petitioners truly and conscientiously believe what they say. They do not hold their beliefs idly, and their conduct is not the outcome of any perversity. They did not assert these beliefs for the first time, nor out of any unpatriotic sentiment.
5. Noted: Jehovah's Witnesses appear to have expressed and stood up for such beliefs all over the world. The Court says their beliefs have been noticed in the Encyclopaedia Britannica and in judicial pronouncements elsewhere.

What the Court noted about Jehovah's Witnesses

6. Noted: the New Encyclopaedia Britannica (Macropaedia), Vol. 10, page 538, calls them adherents of an apocalyptic sect organized by Charles Taze Russell in the early 1870s.
7. Noted: the Britannica says they stand apart from civil society. They refuse 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.
8. Noted: the Britannica says their stands brought clashes with governments, law suits, mob violence, imprisonment, torture and death. More than 6,000 Witnesses were inmates of Nazi concentration camps, and Communist and Fascist States usually forbid their activities.
9. Noted: the Britannica says that in the United States the society took 45 cases to the Supreme Court and won significant victories for freedom of religion and speech. It says they were less successful on exemption from military service and on refusing blood transfusions for their children.
10. Noted: the statement of case in Adelaide Company of Jehovah's Witnesses v. The Commonwealth, 67 CLR 116 (Australian High Court), describes them as a loosely organised association. They regard a literal interpretation of the Bible as fundamental to proper religious belief.
11. Noted: that statement says they believe God (Jehovah) is the Supreme ruler. Satan rebelled and rules the world through organized political, religious and financial bodies. Christ will come again and overthrow the powers of evil.
12. Noted: because of these beliefs they teach publicly that political bodies are organs of Satan. They say they have no part in the political affairs of the world and must stay neutral in wars between nations.
13. Noted: they hold that where God's law conflicts with man's law, the Christian must always obey God's law. For this reason they refuse to take an oath of allegiance to the King or other constituted human authority.
14. Noted: the Adelaide case arose from an action to restrain the Commonwealth of Australia from enforcing the National Security (Subversive Associations) Regulations against Jehovah's Witnesses.
15. Noted: Minersville School District v. Gobitis, 84 Law Ed US 1375, and West Virginia State Board of Education v. Barnette, 87 Law Ed 1628, are American Supreme Court cases. In them Jehovah's Witnesses claimed they could not be compelled to salute the flag and recite the pledge of allegiance.
16. Noted: in Barnette, Jackson, J. described their belief that the law of God is superior to laws enacted by temporal government. They read Exodus, Chapter XX, verses 4 and 5 literally and consider the flag an image within that command, so they refuse to salute.
17. Noted: in Donald v. The Board of Education for the City Hamilton, 1945 Ontario Reports 518, the Court of Appeals of Ontario recorded their objection to saluting the flag and to singing the national anthem. It records that the prayer voiced in the anthem is not compatible with their hope of the coming new world, in which present temporal states have no part.
18. Noted: Sheldon v. Fannin, 221 Federal Supp. 766 (United States District Court of Arizona), arose from refusal to stand when the National Anthem was sung. The Court there noted the example of Shadrach, Meshach and Abednego, who refused to bow down to music at the order of King Nebuchadnezzar, and the Witnesses' willingness to stand for the Pledge out of respect for the flag as a symbol of religious freedom.
19. Held: Jehovah's Witnesses everywhere hold beliefs that may appear strange or even bizarre. But the sincerity of their beliefs is beyond question. The Court then asks whether they are entitled to the Constitution's protection.

The constitutional provisions and the question to be examined

17. Noted: Article 19(1)(a) guarantees to all citizens freedom of speech and expression. Article 19(2) lets the State make a law imposing reasonable restrictions on that right. The restrictions must be in the interests of:
    • the sovereignty and integrity of India;
    • the security of the State;
    • friendly relations with foreign States;
    • public order (peace and tranquillity in society), decency or morality;
    • or they must relate to contempt of court, defamation or incitement to an offence.
18. Noted: Article 25(1) guarantees to all persons freedom of conscience (the judgment does not define the term). It also guarantees the right freely to profess, practise and propagate religion. Both are subject to public order, morality and health and to the other provisions of Part III.
19. Noted: the Court has to examine whether the ban on silence during the Anthem, on pain of expulsion, is consistent with the rights in Articles 19(1)(a) and 25.

No law requires singing; no offence

20. Held: no provision of law obliges anyone to sing the National Anthem. It is not disrespectful to the Anthem if a person who stands up respectfully does not join the singing.
21. Noted: Article 51-A(a) enjoins a duty on every citizen to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
22. Held: "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. In plain words, standing up is the respect the Constitution asks for.
23. Noted: the Prevention of Insults to National Honour Act was enacted in 1971, as the body of the judgment says. The headnote calls it the 1960 Act. Section 2 deals with insult to the Indian National Flag and the Constitution of India.
24. Noted: Section 3 deals with the National Anthem. It punishes anyone who intentionally prevents the singing of the National Anthem or causes disturbance to any assembly engaged in such singing, with imprisonment up to three years, or fine, or both.
25. Held: standing up respectfully but not singing does not prevent the singing or disturb an assembly engaged in it. So it is not the offence in Section 3.

The Kerala Education Act and Rules

26. Held: the Kerala Education Act contains no provision of relevance.
27. Noted: Section 36 of the Act lets the Government make rules to carry the Act into effect, in particular on standards of education and courses of study. The Kerala Education Rules were made under that power.
28. Noted: Chapter VIII of the Rules deals with the organisation of instruction and the progress of pupils. Rule 8 requires moral instruction but says it should in no way wound the social or religious susceptibilities of the people generally. Love of one's country is one component of a high character.
29. Noted: Chapter IX deals with discipline. Rule 6 provides for censure, suspension or dismissal of a pupil found guilty of deliberate insubordination, mischief, fraud, malpractice in examinations, or conduct likely to cause unwholesome influence on other pupils.
30. Held: it is not suggested that the appellants were ever found guilty of misconduct of the kind in Chapter IX, Rule 6. The Commission's report, as the Court was told, says they were always well-behaved, law-abiding and respectful.

The two circulars and Article 19(1)(a)

31. Noted: the first circular stresses moral and spiritual values. Under patriotism it says a school environment should develop patriotism, that neither religion nor party should stand against love of country, and that as a rule the whole school should take part in singing the Anthem.
32. Noted: the second circular, in paragraph 2, makes a daily morning assembly compulsory and requires the whole school to take the National Pledge after the Anthem.
33. Held: the circulars have no legal sanction behind them, because no statute authorised them. They also do not oblige a pupil with a conscientious religious objection to sing, and no penalty is attached to not joining.
34. Noted: the first circular rightly emphasises religious tolerance and says all religions should be equally respected.
35. Held: if the circulars were read to compel every pupil to sing despite a genuine, conscientious religious objection, that compulsion would clearly contravene Articles 19(1)(a) and 25(1).
36. Held: the law is well settled that any law made under clauses (2) to (6) of Article 19 to regulate the freedoms in Article 19(1)(a) to (e) and (g) must be a law having statutory force. A mere executive or departmental instruction is not enough.
37. Noted: in Kharak Singh v. State of U.P., AIR 1963 SC 1295, the Constitution Bench considered police regulations. They were only departmental instructions with no statutory basis. The Bench held they were not a law for Article 19(2) to (6). Nor were they a procedure established by law (a procedure laid down by a valid law) under Article 21. If police action infringed a freedom, the petitioner could get mandamus (a court order to an authority to do its duty or stop acting unlawfully).
38. Held: the two circulars have no statutory basis and are mere departmental instructions. They cannot be the foundation of action aimed at denying a citizen's fundamental right under Article 19(1)(a).
39. Held: it is also not possible to hold that the circulars were issued for any of the purposes in Article 19(2). Those purposes are sovereignty and integrity, security of the State, friendly relations with foreign States, public order, decency, morality, contempt of court, defamation and incitement to an offence. If not so issued, the circulars cannot be invoked to deny the right.
40. Noted: in Kameshwar Prasad v. State of Bihar, [1962] Supp. SCR 369, a Constitution Bench considered Rule 4A of the Bihar Government Servants' Conduct Rules. The rule banned every demonstration, however innocent and incapable of causing a breach of public tranquillity. The Court said the vice of the rule was that it did not confine itself to demonstrations likely to cause that result.
41. Held: in the light of Kharak Singh and Kameshwar Prasad, the Court has no option but to hold that expelling the children was violative of Article 19(1)(a). They respectfully stood in silence and only did not join the singing.

Article 25

42. Noted: the Court sets out Article 25(1), which is subject to public order, morality and health and the other provisions of Part III. Article 25(2) saves existing law. It also saves the State's power to make a law regulating or restricting any economic, financial, political or other secular activity associated with religious practice. It saves a law providing for social welfare and reform, or opening Hindu religious institutions of a public character to all classes of Hindus. The Court did not extract the Explanations, as unnecessary.
43. Held: "Article 25 is an article of faith in the Constitution". Why: the article was incorporated in recognition that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the Constitution. This must be borne in mind when interpreting Article 25.
44. Noted: the right under Article 25 is subject to (1) public order, morality and health, (2) other provisions of Part III, and (3) any law of the kind in Article 25(2)(a) or (b).
45. Held: whenever this fundamental right is invoked, the Court must examine whether the act complained of protects public order, morality and health, gives effect to other provisions of Part III, or is authorised by a law under Article 25(2). It is the duty and function of the Court to do so.
46. Held: as with Article 19(2) to (6), this must be a law having the force of a statute, not a mere executive or departmental instruction.
47. Noted: Latham, C.J. in the Adelaide case, as quoted by Mukherjea, J. in Shirur Mutt, said the Constitution protects religion within an organized community. The final decision on whether a law infringes religious freedom cannot be left to Parliament. The courts must decide if a law is for protecting the community or a law for prohibiting the free exercise of any religion. The purpose of the law may be taken into account.
48. Held: what Latham, C.J. said about the court's responsibility accords with the Court's own view of its function when Article 25 is invoked.

Genuine belief is the test

49. Noted: the meaning of religion in Article 25 has been explained in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR 1005, Ratilal Panachand Gandhi v. The State of Bombay, [1954] SCR 1055, and S.P. Mittal v. Union of India, [1983] SCR 729. The Court says it is not necessary to refer to those expositions, except as follows.
50. Noted: in Shirur Mutt, Mukherjea, J. referred to Jehovah's Witnesses and appeared to quote with approval Latham, C.J. in the Adelaide case and the American Supreme Court in Barnette.
51. Noted: in Ratilal Panachand Gandhi, Mukherjea, J. quoted Davar, J. in Jarnshedji v. Soonabai, 23 Bombay ILR 122. A secular judge is bound to accept a belief proved to be that of a community. It is not for him to sit in judgment on the belief or to interfere with the conscience of a donor.
52. Held: the Court endorses the view in Davar, J.'s observation. "Our personal views and reactions are irrelevant." The question is not whether a belief or practice appeals to reason or sentiment, but whether it is genuinely and conscientiously held as part of the profession or practice of religion. If so, it attracts Article 25 protection, subject to the inhibitions in the article.

The American cases

53. Noted: Minersville School District v. Gobitis asked whether compulsory participation in the flag salute infringed the liberty guaranteed by the Fourteenth Amendment, for a pupil who refused on sincere religious grounds. Frankfurter, J. spoke for the majority and upheld the requirement.
54. Noted: Frankfurter, J. held that the wisdom of training children in patriotic impulses is not for the Court's independent judgment. He said the courtroom is not the arena for debating educational policy, and that deciding otherwise would make the Court the school board for the country.
55. Noted: the Court observes that Frankfurter, J.'s view was founded entirely on his conception of judicial restraint.
56. Noted: in the same case Stone, J. dissented. He said Government may suppress religious practices dangerous to morals, public safety, health and good order. But it is a long step to say Government may, as an educational measure, compel affirmations that violate the religious conscience of the young.
57. Noted: Stone, J. also said the essence of liberty is the freedom of the individual from compulsion as to what he shall think and say, at least where the compulsion is to bear false witness to his religion. He added that history shows few infringements of personal liberty that were not justified in the name of righteousness and the public good, and few not directed at politically helpless minorities.
58. Held: it is not necessary to consider Gobitis at greater length. It was overruled very shortly after, by the same Court, in West Virginia State Board of Education v. Barnette. Justices Black and Douglas, who had agreed with Frankfurter, J., changed their view and agreed with Jackson, J.
59. Noted: Jackson, J. in Barnette said the compulsory salute requires affirmation of a belief and an attitude of mind. Suppression of expression is tolerated only on a clear and present danger (a threat that is immediate and serious). Involuntary affirmation could be commanded only on even more urgent grounds than silence. Remaining passive during the ritual creates no such danger.
60. Noted: Jackson, J. added that to sustain the compulsory salute, the Court would have to hold that a Bill of Rights guarding the right to speak one's own mind leaves it open to officials to compel a person to utter what is not in his mind.
61. Noted: Jackson, J. referred to Lincoln's dilemma whether a government must be too strong for the liberties of its people or too weak to maintain its own existence. He doubted that Lincoln would think government's strength was impressively vindicated by the power to expel a handful of children from school.
62. Noted: Jackson, J. said that a government of limited power need not be anaemic. Assurance that rights are secure tends to lessen fear of strong government. Enforcing those rights is not choosing weak government over strong government. It is adhering to freedom of mind in preference to officially disciplined uniformity.
63. Noted: on the argument that the Court would become the school board for the country, Jackson, J. said there are village tyrants as well as village Hampdens, but no one acting under colour of law is beyond reach of the Constitution. The Court cannot withhold its judgment when liberty is infringed because of modest estimates of its competence in public education.
64. Noted: Jackson, J. ended with the statement that if there is any fixed star in the constitutional constellation, no official can prescribe what is orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess their faith by word or act.
65. Noted: Jackson, J. held that compelling the flag salute and pledge goes beyond constitutional limits. It invades the sphere of intellect and spirit that the First Amendment reserves from all official control.

Sheldon v. Fannin and Donald

66. Held: in Sheldon v. Fannin the pupils refused even to stand. The Court need not consider that case, because the appellants here have always stood and will always stand respectfully when the Anthem is sung. This is not disputed.
67. Noted: in Donald v. Hamilton Board Education, Gillanders, J.A. said the teachers and school board in good faith prescribed the flag salute only to inculcate respect for the flag. He said that, were he guided by personal views, he would find it hard to see why any well-disposed person would object. But it would be misleading to proceed on personal views about what such exercises include.
68. Noted: Gillanders, J.A., after referring to Jackson, J. in Barnette and other cases, said that for a court to say the exercises had no religious or devotional significance might deny the very religious freedom the statute intends to provide.
69. Noted: Gillanders, J.A. said that the infant appellants' refusal to join was not conduct injurious to the moral tone of the school. They did not take part in any religious ceremony. They only refrained from joining the exercises.
70. Held: the Court is satisfied that expelling the three children, because of their conscientiously held religious faith, for not joining the singing though they stand up respectfully, violates their fundamental right to freedom of conscience and freely to profess, practise and propagate religion.

The respondents' argument on religious denominations

71. Noted: Shri Vishwa Nath Iyer and Shri Potti argued that persons belonging to a religious denomination cannot claim the right under Article 25(1). They relied on a sentence in Jagdishwaranand v. Police Commissioner, Calcutta, AIR 1984 SC 51.
72. Noted: that case asked whether the Ananda Margis had a fundamental right under Article 25 or Article 26 to perform the Tandava dance in public streets and places. The Court there found Ananda Marga was a Hindu religious denomination, not a separate religion. It also found the Tandava dance was not a religious rite or practice essential to Ananda Marga's tenets.
73. Noted: the sentence relied on says that Mr. Tarkunde, counsel for the petitioner, claimed protection of Article 25, but since Ananda Marga was not a separate religion, application of Article 25 was not attracted.
74. Held: this sentence appears to have crept into the judgment by some slip. It does not follow from the reasoning of that court on any issue. In the later paragraphs that court expressly went on to consider the claim to perform the dance under Article 25(1).
75. Held: the respondents' argument fails.

Conclusion

76. Held: the fundamental rights of the appellants under Articles 19(1)(a) and 25(1) have been infringed. They are entitled to be protected.
77. Noted: the Court ends with the words "our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it."

Authorities

• Kharak Singh v. State of U.P. (AIR 1963 SC 1295): police regulations that were only departmental instructions were not "a law" for Article 19(2) to (6). Followed to hold that the circulars cannot restrict Article 19(1)(a).
• Kameshwar Prasad v. The State of Bihar ([1962] Supp. SCR 369; the judgment also spells it Kameshwar Pradesh v. State of Bihar): a rule banning every demonstration, even innocent ones, was invalid. Applied with Kharak Singh to hold the expulsion violated Article 19(1)(a).
• Adelaide Company of Jehovah's Witnesses v. The Commonwealth (67 CLR 116, Australian High Court): used for the Witnesses' beliefs and for Latham, C.J.'s view that courts, not Parliament, decide if a law infringes religious freedom. The Court said that view accords with its own.
• Minersville School District v. Gobitis (84 Law Ed US 1375, American Supreme Court; the judgment also writes Minersville School Dist. v. Gobitis): upheld a compulsory flag salute on grounds of judicial restraint. Noted, with Stone, J.'s dissent, and said to be overruled soon after.
• West Virginia State Board of Education v. Barnette (87 Law Ed 1628, American Supreme Court): overruled Gobitis. The Court quoted Jackson, J.'s opinion at length with approval.
• Donald v. The Board of Education for the City Hamilton (1945 Ontario Reports 518, Court of Appeals of Ontario; the judgment also writes Donald v. Hamilton Board Education): noted for the Witnesses' belief and for Gillanders, J.A.'s view that abstaining is not conduct injurious to the school's moral tone.
• Sheldon v. Fannin (221 Federal Supp. 766, United States District Court of Arizona): noted for the Witnesses' refusal even to stand. Not considered further, because the appellants always stand.
• Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ([1954] SCR 1005): referred to for the meaning of religion and for Mukherjea, J.'s references to Jehovah's Witnesses, Adelaide and Barnette.
• Ratilal Panachand Gandhi v. The State of Bombay ([1954] SCR 1055): referred to for the meaning of religion. Mukherjea, J. there quoted Davar, J. in Jamshedji v. Soonabai.
• S.P. Mittal v. Union of India ([1983] SCR 729): referred to for the meaning of religion in Article 25.
• Jarnshedji v. Soonabai (23 Bombay ILR 122; the judgment text prints the name this way): Davar, J.'s observation that a secular judge must accept a proved belief. The Court endorsed the view that only genuine and conscientious belief matters.
• Jagdishwaranand v. Police Commissioner, Calcutta (AIR 1984 SC 51): distinguished. A sentence in it about Article 25 and Ananda Marga was held to be a slip.

Also cited in footnotes: the judgment has no footnotes.

Judgement

1. The Court held that the fundamental rights of the appellants under Articles 19(1)(a) and 25(1) were infringed.
2. The appeal was allowed.
3. The judgment of the High Court was set aside.
4. The respondent authorities were directed to re-admit the children into the school.
5. They were directed to permit the children to pursue their studies without hindrance.
6. They were directed to facilitate the pursuit of the studies by giving the children the necessary facilities.
7. The appellants are entitled to their costs.

Legal Principle / Ratio

No law makes anyone sing the National Anthem. A person who stands respectfully but does not sing is not disrespectful. Expelling a child for that reason, on the strength of departmental circulars, violates Article 19(1)(a) and the freedom of conscience in Article 25(1). Key holding: "Proper respect is shown to the National Anthem by standing up when the National Anthem is sung."

Critical Analysis

Analysis based on the judgment text.

• The Commission's report was not before the Court. The Court says it was only told what the Commission found. The finding of no disrespect rests on that account and on the fact that it is nobody's case otherwise.
• The Court avoids the case of refusing to stand. It leaves Sheldon v. Fannin aside because the appellants always stand. The judgment gives no view on pupils who refuse even to stand.
• Article 25(2) and the other provisions of Part III are listed but not applied. The Court says the act complained of must be examined against public order, morality, health and Article 25(2). It does not state which of these the State relied on, because the circulars were no law.
• The wording of Article 25(2) is quoted in part only. The Court does not extract the Explanations, as it finds them unnecessary.
• The overruling of Gobitis is stated briefly. The Court says Gobitis was overruled soon after and does not trace the reasoning of the later case beyond the passages it quotes.

Significance

• The Court holds that Article 25 protects a person who refrains, on conscientious religious ground, from joining an act. The judgment treats the bar on silence as an interference with that freedom.
• It states that the test of religious belief is genuineness and conscientiousness. The judge's own views on the belief do not count.
• It holds that departmental circulars cannot restrict Article 19(1)(a) or Article 25. Only a law with statutory force can.
• It rejects the idea that a person belonging to a religious denomination cannot claim Article 25(1).
• It describes Article 25 as an article of faith that protects even an insignificant minority.

Exam-Important Points

• Bench and date: O. Chinnappa Reddy and M.M. Dutt, JJ., 11 August 1986. Judgment delivered by Chinnappa Reddy, J.
• Facts in one line: three Jehovah's Witness children stood but did not sing Jana Gana Mana and were expelled from 26 July 1985.
• Holding: expulsion violated Article 19(1)(a) and Article 25(1). The High Court was reversed and re-admission directed, with costs.
• Section 3 of the 1971 Act: punishes only intentionally preventing the singing or disturbing an assembly engaged in it. Standing without singing is not an offence.
• Article 51-A(a): the duty to respect the National Anthem is met by standing when it is sung.
• Trap: the two circulars of 1961 and 1970 were not statutes. Only a law under Article 19(2) to (6) or Article 25 can restrict the rights.
• Test for belief: genuinely and conscientiously held. Personal views and reactions are irrelevant. Protection is still subject to the inhibitions in Article 25.
• Cases to remember: Kharak Singh, Kameshwar Prasad, Barnette (which overruled Gobitis), Shirur Mutt and Jagdishwaranand (a sentence called a slip).
• Last words: the Court adds a plea for tolerance and asks that it not be diluted.

Prepared from the full text of the judgment. The judgment has no numbered paragraphs, so no paragraph numbers are cited. The citation is as printed in the judgment text.