Bijoe Emmanuel v State of Kerala (Supreme Court, 1986) — the National Anthem case

It is the clearest statement that Article 25 protects a sincerely held religious belief whether or not the court thinks it reasonable, that the freedom of religion and the freedom of expression protect the right not to speak, and that a school circular cannot restrict a fundamental right that only a law made under Article 19(2) could restrict.

The three appellants, Bijoe, Binu Mol and Bindu Emmanuel, were children of the Jehovah's Witnesses attending a school in Kerala. Every morning when the National Anthem was sung they stood respectfully but did not sing, because their faith forbade the singing of any anthem, not because of any objection to its words. Their elder sisters had done the same for years without complaint. In July 1985 a Member of the Legislative Assembly raised the matter; a Commission reported that the children were law-abiding and showed no disrespect; but on the instructions of the Deputy Inspector of Schools the headmistress expelled them on 26 July 1985. The Kerala High Court, a single judge and then a Division Bench, refused relief, examining the words of the anthem and finding nothing in them to offend any religion. The children appealed by special leave to a Bench of Chinnappa Reddy and Dutt JJ.

1. Is the expulsion of the children for not singing the National Anthem consistent with Article 19(1)(a) and Article 25(1)?
2. Does any law require the singing of the anthem, or make silence disrespect?

The wrong question. The High Court "misdirected itself and went off at a tangent" by examining the anthem's words: the children's objection was to singing, not to the sentiments.

No law compels singing. "there is no provision of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing." Article 51A(a) enjoins respect for the anthem, and "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." Section 3 of the Prevention of Insults to National Honour Act, 1971 punishes whoever prevents the singing or causes disturbance to an assembly engaged in it; standing silently does neither. The Kerala Education Act and Rules contain no relevant provision, and the departmental circulars relied on are not "law" that can restrict Article 19(1)(a): a restriction on that right must be a law made under Article 19(2), and "If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection, then such compulsion would clearly contravene the rights guaranteed by Article 19(l)(a) and Article 25(1)."

Article 25. The Court held that the question is not whether the belief is reasonable but whether it is sincerely held as part of the religion. The expulsion of the children "for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly though they do stand up respectfully when the anthem is sung, is a violation of their fundamental right ‘to freedom of conscience and freely to profess, practise and propagate religion’." The respondents' argument that a mere denomination could not claim Article 25(1) was rejected.

Result. "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."

Standing respectfully during the National Anthem without singing is neither disrespect nor an offence; no law requires singing; and to expel a student for conscientious religious silence violates Articles 19(1)(a) and 25(1). A fundamental right can be restricted only by a law of the kind the Constitution permits, not by an administrative circular, and the sincerity of a religious belief, not its reasonableness, is what Article 25 protects.