Holding

Compulsory singing of the National Anthem and expulsion of pupils for refusing on genuine religious grounds violate Articles 19(1)(a) and 25(1) of the Constitution.

Summary

Three children belonging to the Jehovah's Witnesses sect were expelled from a Kerala school for refusing to sing the National Anthem, though they stood respectfully during its rendition. The petitioners claimed that compulsory singing violated their fundamental rights under Articles 19(1)(a) (freedom of speech) and 25(1) (freedom of religion). The Supreme Court examined the applicability of the Prevention of Insults to National Honour Act, the Kerala Education Act and Rules, and two departmental circulars, finding none of them legally required singing or justified expulsion. The Court held that the circulars were not statutes and could not restrict constitutional rights, and that standing respectfully did not constitute an offence under the Prevention Act. Consequently, the expulsion was deemed a violation of the petitioners' fundamental rights, and the High Court judgment was set aside, ordering the children’s reinstatement.

Issues considered

Whether compulsory participation in singing the National Anthem infringes Article 19(1)(a) and Article 25(1) of the Constitution.
Whether the expulsion of pupils under Kerala Education Rules is valid in view of their religious objection.
Whether Section 3 of the Prevention of Insults to National Honour Act applies to pupils who stand respectfully but do not sing.
Whether the two departmental circulars constitute a 'law' under Article 19(2) capable of restricting fundamental rights.

Legislation cited

Kerala Education Act, 1959s. 36
Kerala Education Rules, 1959s. Chapter IX Rule 6
Prevention of Insults to National Honour Act, 1960s. 3

Subjects

National AnthemFreedom of ReligionFreedom of SpeechCompulsory SingingJehovah's WitnessesFundamental RightsEducation LawExpulsionConstitutional LawArticle 19Article 25Prevention of Insults to National Honour Act

Judgment

A

BIJOE EMMANUEL & ORS.
v.
STATE OF KERALA & ORS.
B
AUGUST 11, 1986

[0. CHINNAPPA REDDY AND M.M. DUTT, JJ.]

Constitution o.f India, Art. 19(/)(a) and 25(/)-National
Anthem-Singing o.f-Compulsion despite genuine conscientious religi-
c ous objection-Whether contravenes Fundamental Rights. ,

Prevention o.f Insult to National Honour Act, 1960, s. 3-
National Anthem-Singing o.f-Re.fusal on genuine conscientious religi-
ous faith-Whether offence committed.
D 4
Kera/a Education Act, 1959 read with the Kera/a Education
Rules, 1959, s. 36, Chapter IX Rule 6--National Anthem-Singing o.f-
Refusal by school pupils on genuine conscientious religious faith-
Whether misconduct entitling censure suspension dismissal of pupil.

E _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 Nl!tional Anthem-but the singing of it.

F They desisted from actual singing only because of their aforesaid
honest belief and conviction but they used to stand up in respectful -J
silence daily, during the morning assembly when the National Anthem '
was sung.

A Conunission was appointed to enquire and report, and it re-
G ported that the children were "law abiiling" 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 represe'ltation by the father of the children to the Education
H Authorities requesting that the children may be permitted to attend the

518
B. EMMANUEL v. STATE 519

school pending orders from the Government having failed, the appel- A
lants filed a Writ Petition in the High Court seeking an order restrain-
ing the authorities from preventing them from attending the school. A
single Judge and then a Division Bench rejected the prayer of the
appellants.

Allowing tGe appeal hy Special Leave, to this Court, B

HELD: I. I. The Fnndamental Rights of the appellants under
Art. J9(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

' c
not join the singing of the National Anthem in the niorning 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
I to profess, practice and propagate religion. Therefore, the judgine11t of
the High Court is set aside and the respondent antborities are directed
,.,to-~admit the children into the school, to permit them to pursue their
studies without hindrance and to facilitate the pursuit of their studies by D
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 E
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
.4. 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 F
oflnsults to National Honour Act. [5l7B-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) sball prevent a State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the said right. Ci
Art. 25(1) guarantees !o all persons freedom of conscience and tlte right
freely to pi:ofess, practise and propagate religion, subject to order, mora-
lity and health and to the other provisions of Part l!ll of the Constitution.
Art. 51-A(a) of the Constitution enjoins a duty on e-•ery citizen of India
"to abide by the Constitution and respect Its ideals and institutions, the
National Flag and the National Anthem''. [526G·H; 527C] H
520 SUPREME COURT REPORTS 11986) 3 S.C.R.

A 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 HI, on the nther hand, the State is also given
the liberty to make a law to regulate or reside! 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
B regulation, restriction or provision affects the right guaranteed by Art.
25(1). Therefore, whenever the Fundamental Right to freedom of cons-
cience 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
c 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-R] ·

2. 3 Any law which may be made under clauses 2 to 6 of Art. 19 to
D regulate the exercise of the right to the freedoms guaranteed by Art.
I9(J)(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
E instructions. They cannot, therefore, form the foundation of any action
aimed at denying to citizens Fundamental Right under Art. 19(l)(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
F to an offence' and if not so issued, they cannot again be invoked to deny
a citizen's Fundamental Right under Art. 19(l)(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 religi-
ous objection, then such compulsion would clearly contravene the rights
guaranteed by Art. 19(l)(a) and Art. 25(1). [530C-E; 529C]
G
Kharak Singh v. State of U.P., AIR 1963 SC 1295 and Kamesh-
war Prasadv. 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
H
B: EMMANUEL v. STATE OF KER. [REDDY, J .] 521

misconduct such as that described in Chapter IX, Rule 6 of the Kerala A
Education Rules. On the other hand, the report of the Commission, is to
the effect that tbe children have always heen well-behaved, law-abiding
and respectful. [5288-C]
I
4. The qlMfilion is not whether a particular religions belief or
B
practice appeals to our reason or oentiment 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 instaut ~, what the petitioners truly and conscientiously c
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 (U'St time or out of any unpatriotic sentiment
Jehovah's Witnesses, as they call tbems!'lves, appear to have always
expressed and stood up for such beliefs all the world over. [523C-D]
D
Adelaide Company of Jehovah's Witnesses v. The Common-
wealth, 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 E
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 & Ors., [1983] 1 SCR
729 and Jagdishwaranand v. Police Commissioner, Calcutta, AIR 1984
~.·
SC 51 referred to.
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 870
ofl986

From the Judgment and Order dated 7.12.1985 of the Kerala
High Court in W.A. No. 483of1985.
G
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 to3. ·
522 SUPREME COURT REPORTS [!986] 3 S.C.R.

A P . S. Poti, E . M.S. Anam and James Vincent for the Respon-
dents. 1

The Judgment of the Court was del.ivered by

B CIDNNAPPA 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
c 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 un-
patriotic of the children not to sing the National Anthem. He hap-
D
p.ened 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-4han well-behaved or that
E
they have ever behaved disrespectfully when the National Anthem was
sung. They have always stood up in respectful silence. But these. mat-
ters 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
F
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
G
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
H
B. EMMANUEL v. STATE [REDDY, J.I 523

or thought in the National Anthem which.could offend anyone's religi~ A
ous susceptibilities. j3ut 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 occassions to sh'\lw 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 i.oin any rituals except it be in their prayers to Jehovah their
God."

'
c
That the petitioners truly and consdentioulsly believe what they
say is not in doubt. They do not hold their beliefs idly and their con-
duct is not the outcome of any perversity. The petitioners have ·not
asserted these beliefs for the first time or out of any unpatriotic senti-
ment. Jehovah's Witnesses, as they call themselves, appear to have
D
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 pro-
nouncements elsewhere.
E
In 'The New Encyclopaedia Britannica' (Macropaedia) Vol. 10
page 538, after mentioning that Jehovah's Witnesses are "the adhe-
rents 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 publish-
irig arm, exemplifies .the will of God and proclaims the truths of the
F
Bible against the evil triumvirate of organized religion, die business
world, and the state ...... The Witnesses also stand apart from-civil
society, refusing to vote, run for public office, serve in any atmed
forces, salute the flag, stand for the National Anthem, or recite the
pledge of allegiance. Their religious stands have brought dashes with
various governments, resulting in law suits, mob vioience; itrtprisor).-
G
ment, 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 acti.vities. In the U.S. the sodety has
taken 45 cases to the Supreme Court and has won significant victbries
for freedoll! of religion and speech. The Witnesses have been less

-
successful in claiming exemptions as ministers from military service
524 SUPREME COURT REPORTS 11986] 3 S.C.R.

A 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 de-
B cided by the Australian High Court. It is stated,

"Jehovah's Witnesses are an association of persons loosely .i.-
organised throughout Australia and elsewhere who regard
the literal interpretation of the Bible as Fundamental to
proper religious beliefs."

c "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
-+-
D organization had ruled the world. He rules and controls the
world through material agencies suc_h as organized politi-
cal, religious, and financial bodies. Christ, they believe,
came lo earth to redeem air 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."
E
'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, un-
righteously governed and identifiable with the Beast in the
F
thirteenth chapter of the Book of Revelation. Also that
Jehovah's Witnesses are Christians entirely devoted to the
Kingdom of God, W.hich is "The Theocracy" that they have
no part in the political affairs of the worlq and must not
interfere in the least manner with war between nations.
They must be entirely neutral and not interfere with the
G
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-
H
B. EMMANUEL v. STATE (REDDY, J.i 525

ses. Accordingly they refuse to take an oath of allegiance to A
the King or other constituted human authority."

'fhe case of Adelaide Company of Jehovah's Witnesses v. The
Commonwealth (supra) arose out of an action to restrain the Com-
monwealth of Australia from enforcing the National Security (Subver-.
B
sive Associations) Regulations to the Jehovah's Witnesses.

Minersville School District v. Gobitis, 84 La\v. 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 tci salute the flag of
the United States while reciting pledge of allegiance. In the latter case, c
Jackson, J. referred to the particular belief of the Witnesses which was
the subject matter of that case, as follows:

"The Witnesses are an unincdrporate<) body teaching that
the obligation imposed by law of God is superior to that of
D
laws enacted by temporal government. Their religious be-
liefs incl~de a literal version of Exodus, Chapter J:'X_, ver-
ses 4 and 5, which says "1bou 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,
E
nor serve them." They consider that the flag is an "image"
within this command. For this reason they refuse to salute
it."

Donald v. The Board of Education for the City Hamilton 1945
_()ntario Reports 518 is a case decid_ed by the .Court of Appeals of
F
Ontario where the objection by Jehovah's Witnesses was to saluting
the flag and singing National Anthem. The Court referred to the fol-
lowing belief of the Jehovah's Witnesses:

"The appellants, father and sons, are affiliated with
"Jehovah's Witnesses" and believe that saluting the flag
G
and 1oining in the singing of the national anthem are both
contr'ary 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
H
526 SUPREME COURT REPORTS [1986] 3 S.C. R.

A with the belief and hope which they hold in the early com-
ing 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
B Jehovah's Witnesses to stand when the National Anthem was sung.
The Couri observed:
'This refusal to participate, even to the extent of standing,
without singing, is said to have been dictated by their religi-
ous beliefs as Jehovah's Witenesses, ,requiring their literal
acceptance of the Bible as they Word of Almighty God
c 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 : 13-
D
28) For a similar reason, members of the Jehovah's Witnes-
ses 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 iinage. (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,
E
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,
F
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
G
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 sove-
reignty and integrity of India, the security of the State, friendly rela-
tions with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence.
Art 25(1) guaraniees to all persons freedom of conscience and the
H
B. EMMANUEL v. STATE [REDDY, J.] 527

right freely to profess, 'practise and propogate religion, subject to or- A
der, 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.
B
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 respect-
fully 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 institu: c
tions, 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. ·
D
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 Con-
stitution oflndia, s. 3 deals with the National Anthem and enacts,

"Whoever, intentionally prevents the singing of the
E
National Anthem or causes disturbance to any assembly
engaged in such singing shall be punished with imprison-
ment 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
F
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 Preven-
tion of Insults to National Honour Act.

The Kerala Education Act contains no provision of relevance.
G
Section 36, however, enables the Government to make rules for the
'JlUrpose of carrying into effect the provisions of the Act and in particu-
lat to provide for standards of education and courses of study. The
Kerala Education Rules have been made pursuant to the powers con-
ferred by the Act. Chapter VIII of the Rules provides for the organisa-
tion of instruction and progress of pupils. Rule 8 of Chapter VIII H
•.

528 SUPREME COURT REPORTS (1986] 3 S.C.R.

A 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 susceptibilites of the peoples gener-
ally." 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
B
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, ,>--
c 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 1%1 and February 1970 issued by the Director of Public
Instruction, Kerala. The first of these circulars is said to be a Code of
D
Conduct for Teachers and pupils and stresses the importance of moral
and spiritual values. Several generalisations have been made and un-
der the head patriotism it is mentioned,

"Patriotism '
E
L Environment should be created in the school to develop
the right kind of patriotisms· in the children. Neither reli-
gion nor party nor anything of this kind should stand
against one's love of the country.

F
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:
G
"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
H
B. EMMANUEL v. STATE [REDDY, J.) 529

the National Pledge before marching back to the classes." A

Apart fropt 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 B
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 c
his genuine, conscientious religious objection, then such co_mpulsion
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 a:n citi-
zens freedom of speech and expression and to Art. 19(2) which pro-
vides that nothing in Art. 19(1}(a) shall prevent a State fro'm making
any law, in so far as such law impose reasonable restrictions on the
exercise of the right conferred by Art. 19(l)(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
E
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 ihe 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 in-
struction. In Kharak Singh v. State of U.P., AIR 1963 SC 1295 the
F
question arose whether a police regulation which was a mere depart-
mental 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
G
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 instruc-
tions framed for the guidance of the police officers. They
would not therefore be "a law" which the State is entitled
530 SUPREME COURT REPORTS 11986) 3 S.C.R.

A to make under the relevant els. (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
B
freedoms guaranteed to the petitioner the petitioner would
be entitle'd to the relief of mandamus which he seeks, to
restrain the State from taking action under the regu-
lations."

The two circulars on which the department has placed reliance in
·c 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 or-
D der, decency ot morality, or in relation to contempt of court, defama-
tiOn or in.citement 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 Katneshwar Ptasad v. The State of Bihar, 11962) 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
E 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 dis-
turbance of public tranquility or which would fall under the
F · 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 demonstra-
G tions which might lead to that result."

Examining the action of the Education Authorities in the light of
Khatak 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
H
B. EMMANUEL v. STATE [REDDY,~.] 531

. "" the National Anthem though they respectfully stood up in silence .
when the Anthem was sung was violative of Art. 19(1)(a).
A

Turning next to the Fundamental Right guaranteed by Art. 25,
we may usefully set out here that irticl~ to the extent relevant:
B
"25(1) Subject to public order, morality and health and to
-A. the other provisions of this Part, all persons are \lCjllally
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- c
(a) reguiating 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
D
of Hindu religious institutions of a public character to all classes and
·sections of Hindus."

(Explanations I and II not extracted as unnecessary) A,rticle 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 !lbility of
E
even an insignificant minority to find its identity under the country's
-1 Constitution. This has to be borne in mind in interpreting Art. 25.
-~
0
We see that the right to freedom of conscience and freely to
.,+ profess, practise and propagate religion guaranteed by Art, 25 is sub- .
ject to (1) public order, morality and health; (2) other provisions of
F
Part III of the Constitution; (3) any law (a) regulating or res\tjctiµg
~ any economic, financial, political or other secular activity which may
be associated with. religious practi":"; or (b) providing for social welfare
and reform or the throwing open <?f 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
G
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 mlll<e a
law to regulate or restirct 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, restric-
tion or provision affects the right guaranteed by Art. 25(1). Therefore, H
532 SUPREME COURT REPORTS [1986] 3 S.C.R.

A whenever the Fundamental Right to freedom of conscience and to -f' ~
profess, pr,actise 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
B
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 depart-
mental instruction. We may refer here to the observations of Latham,
c CJ. in Adelaide Company of Jehovah's Witnesses v. The Common-
wealth (supra), a decision of the Australian High Court quoted by
Mukherje, J. in the Shrirur Mutt case. Lat~am, CJ. had said:
"The Constitution protects religion within a community
4-
organized under a Constitution, so that the continuance of
D 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
E any consideration by a court of the question whether or not f-
such a law infringes religious freedom. The final determi-
I-
nation of that question by .Parliainent 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 can- +
F not, 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 infrin-
ges it_ and by declining to enforce them. The courts will
therefore have the responsibility of determining whehter a
G 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 reli-
gion." The word "for" shows that the purpose of the legis- ~
lation in question may properly be taken into account in I-
determining whether or not it is a law of the prohibited
H character."
.• .
B. EMMANUEL v. STATE [REDDY, J.] 533 '
What Latham, CJ. has said about the responsibility of the court ac- A
cords 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 i>y Art. 25 of the Con- B
stitution, has been explained in the well known cases of The Commis-
sioner, 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 con-
tained in these judgments except to say that in. the first of these cases
c
Mukhetjea, J. made a reference to "Jehova's Witnesses" and appea-
red 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. Bamettee (supra). In Ratilal's case we also notice that D
Mukherjea, J .. quoted as appropriate Davar, J. 's following observa-
tions In Jamshedji v. Soonabai, 23 Bomaby ILR 122:
"If ·this is the belief of the Commu"nity and it is proved
undoubtedly to be the belief of the Zoroastrian commu-
nity,-a secular Judge is bound to accept thatbelief-it is
E
not for him to sit in judgement on that belid, 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
F
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 rea.:tions 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.
1 G

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-
H
534 SUPREME COURT REPORTS [1986] 3 S.C.R.

.A 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 re-
qJJirement regarding participation in the ceremony of flag salutation
primarily on the ground,
ll
"The wisdom of training children in patriotic impulses by
those compulsions which necessarily prevade so much of
the edueational process is not for our independent judg-
ment ......... 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 I -
c courtroom is not the arena for debating issues of educa-
tional policy. It is not our province to choose among com-
peting considerations in the subtle process of securing ef-
fective loyalty to the traditional ideals of democracy, while
respecting at the same time individual idiosyncracics
D 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 concep-
E
tion 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
F
long step, and one which I am unable to take, to the posi-
tion that Government may, as a supposed, educational
measure and as a means of disciplining young, compel affir-
mations which vie>late their religi_ous conscience."·

Stone, J. further observed:
G
"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"
H
B. EMMANUEL v. STATE [REDDY, J.] 535

It was further added: A

"History teaches us that there have been but few infringe-
ments of personal liberty by the State which have not been
justified, as they are Jiere, in the name of rigl)teousness
and the public good, and few which have·norbeen directed,
B
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 Educa-
tion v. Barnene (supra). Justices Blacl<' and Douglas who had agreed
with Justice Frankfurter in the Gobitis's case retraced their steps and c
agreed with Justice Jackson who gave the opinion of the court in West
Virginia State Board of Education v. Barnene (supra). Justice .Jackson
in the course of his opinion observed,

It is also to be noted that the compulsory flag salute and
D
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 ex- E
pression of opinion is tolerated by our Constitution only when
the expression presents a clear and present danger of action
of a kind the State is empowered to prevent' and punish. It
would seem that involuntary affirmation could be comman~
ded only on even .more immediate and urgent grounds than
silence. But here the power of compulsion is invoked F
•· 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 G
utter what is not in his mind."

Justice Jackson referred to Lincoln's famour dilemma 'must. a govern-
ment of necessity be too strong for the· liberties of its people, or too
weak to maintain its own existence' and added, ·
H
536 SUPREME COURT REPORTS [1986] 3 S.C. R.

A "hmay be doubted whether Mr. Lincoln would have
thought that the .strength of. g9vemment 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.
B
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
c 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
D
today is not to choose weak government over strong govern-
ment., It is only to adhre as a means of strength to indi-
vidual freedom of mind in preference to officially disci-
plined uniformity for which history indicates a disappoint-
ing and disastrous end."
E 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
F Constitution ..... We cannot, because of modest estimates
of our competence in such specialities a·s 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
G
"If there is any fixed star in our Constitutional con-
stellation, 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
H
which permit an exception, they do not now occur to us.
B. EMMANUEL v. STATE. [REDDY, J.) 537

We think the action of the local authorities in compel- A
ling the flag salute and pledge transcends constitutional
limitations on their power and invades the sphere of intel-
lect and spirit which it is the purpose of the First Amend-
ment to our Constitution to reserve from all official
control." B

-,__t. 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 con-
sider that situation in the present case since it is the case of the appel-
-----'( lants and it is not disputed that they have always stood up and they will
- i always stand up respectfolly when the National Anthem is sung. ·
c
Donald v. Hamilton Board Education (supra) was again a case ot
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 D
board, in the case now being considered, in good faith pre-
scribed 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 E
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 com- ·
mand 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 ~n proper perspective, to
F
join in an act of respect for a contrary principle, that is, to
pay respect to a nation and country which stands for religi-
ous 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
G
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 H
observed, .
538 SUPREME COURT REPORTS [1986) 3 S.C. R.

A "For the Court to take to itself the right to say that
the exercises here in question had no .religious or devo-
tional significance might well be for the Court to deny that
very religious freedom which the statute is intended to
provide."
B
"It is urged that the refusal of the infant appellants
to join in the exercises in question is disturbing and consti-
tutes conduct injurious to tl)e 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
c .............. To do just that could not, I think be vie-
wed as conduct injurious to the moral tone of the school or
class."

We are satisfied, in the present case, that the expulsion of the
D 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 wl)en the anthem is sung, is a violation of their fundamen-
tal riglit to freedom of conscience and freely to profess, practice and
propagate religion.
E
Shri Vishwa Nath Iyer and Shri Potti, who appeared for the
respondents suggested that the appellants, who belonged but to a re-
ligious denomination co.old not claim the Fundamental Right guaran-
teed by Art. 25(1) of the Constitution. They purpored to rely upon a
sentence in the judgment of this court in Jagdishwaranand v. Police
F Commissioner, Calcuaa, 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
sfreets and public place~. Jhe 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
G
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:

H "Mr. Tarkunde, Counsel for the petitioner had claimed
B. EMMANUEL v. STATE [REDDY, J.) 539

proteciion of Art. 25 of the Constitution; but in view of our ;\
finding that Ananda Marga was not a separate religion. appli-
cation of Art. 25 is not attracted."

This sentence appears tci have crept into the judgment by some slip. It
is not a sequitur to the reasoning of the court on any of the issues. In
fact, in ihe subseq UM! paragraphs, the court has expressly proceeded B
to consider ihe claim of the Ananda .Marga to perfonn 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 appel-
lants under Art. 19(l)(a) and 25(1) have been infringed and they ate c
entitled to be protected. We allow the appeal, set aside the judgment
cif the High Court and direct the respondent authorities to re-admit the
children into ihe school, to permit them to pursue their studies without
hindrance and io facilitate the pursuit of their studies by giving them
the necessary facilities. We oniy wish to' add: our tradition teaches
tolerance; our philosophy preaches tolerance; our eonstitutiori prac- b
tices toletililce; let us not dilute it.

the appellants are eniitled to their costs.

M.L.A. Appeal allowed,