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Bijoe Emmanuel v State of Kerala – Case Analysis

Introduction

The very nature of the Fundamental Rights enshrined in our Constitution many times brings them in controversy. While the Fundamental Rights are not absolute, the State is required to guarantee them to every citizen apart from exceptional circumstances. Even then, the Right to Life and Personal Liberty are somewhat absolute. The exercise of these rights does not simply mean that a person can do what he/she wants so far as it is in accordance with the law and falls within the ambit of these rights; it also includes the choice of a person to not do something, to abstain from something if it is in accordance with the provisions of the Fundamental Rights. Speaking in this context, a major Fundamental Right that stands out is the Right to Freedom of Speech and Expression, mentioned under Article 19(1)(a). With its reasonable restrictions, the right can be exercised without any interference. But, what if such exercise clashes against the ideals of patriotism? Is it morally and legally correct to put one’s fundamental freedoms above patriotism, and if yes, then to what extent? Or, are the two completely exclusive of each other? A significant case that came up against the Indian judiciary in this matter was Bijoe Emmanuel v State of Kerala [1], and it sought to answer all these questions and cleared the path for future references.

Facts of Bijoe Emmanuel v State of Kerala

Bijou, Binu Mol and Bindu Emmanuel were three students who were enrolled in a school in the state of Kerala. Like every other student, they were disciplined, attended school regularly, and also attended the morning assembly. But, when the assembly sang the National Anthem, the three students did not sing it along with the rest of the students, although they stood in attention when it was being sung. Two elder sisters of these students also studied in the school and did not sing the National Anthem, however, nobody ever pointed it out or objected to it. As for the students, they were followers of the religious faith of Jehovah’s witnesses, and thus objected to the singing of the Anthem, since as per their beliefs, they were not to indulge in any ritualistic practice apart from being in prayer towards their God, Jehovah.

One day, a member of the Legislative Assembly of Kerala was also attending the morning assembly of the school, when he noticed that the said students were not singing the National Anthem. Thinking that their behaviour was unpatriotic, he pointed the students out and questioned the school, as a result of which a commission was set up to look into the matter.

Despite the commission’s findings that the students had always carried good behaviour and had abided by the law at all times, the headmistress of the school expelled the students after instructions from the Deputy Inspector of Schools. The father of the students requested that his children be taken back at least until an official order arrived, but the headmistress refused, stating that she did not have the authority to do so. Aggrieved by this, the party moved to the High Court of Kerala, seeking a restraining order against the authorities. It was rejected by a learned single judge bench as well as a division bench of the same, on the basis that the National Anthem did not comprise of any such words or thoughts that could possibly hurt the religious sentiments of someone. The party then moved to the Supreme Court and instituted a Special Leave Petition under Article 136 of the Constitution.

Arguments Raised in Bijoe Emmanuel v State of Kerala Case

The main point of objection as against the appellants was that by not singing the National Anthem, the students had displayed unpatriotic behaviour, and had disgraced the Anthem by not singing it along with the rest of the students. The argument raised by the petitioners in their defence was that the students had always stood in attention when the National Anthem was being sung, and had never shown any disrespect towards it. They did not sing only because their religious beliefs did not allow them to.

The main issues raised in the petition were whether the expulsion of the students from the school was justified, and whether such expulsion was consistent with the Fundamental Rights of the students under Articles 19(1)(a) and 25(1).

The decision of the High Court, before the appeal to the Supreme Court was made, was based on Section 36 of the Kerala Education Act, 1958. As per the Section, the Act allows the state government to impose the provisions of the Act to ensure a good standard of education in the schools. As per the rules of the Act, the students were to be subject to good moral education, which also included patriotism and love for the country. Students who were guilty of mischief or fraud, or who were evidently a bad influence on other students could be expelled from the school. The Education Authorities for the state of Kerala also followed two circulars: A Code of Conduct for teachers and students, which stressed on patriotism and other moral and spiritual values, and the compulsion for every school to hold a morning assembly, where everyone would sing the National Anthem and take the National Pledge. If these circulars were to be interpreted such that it was compulsory for every student to sing the National Anthem despite their religious faith, they stood in violation of Articles 19(1)(a) and 25(1) of the Indian Constitution.

Decision of Supreme Court

Unlike the High Court, the Supreme Court took a liberal approach. It stated that Article 19(1)(a), which guarantees the Right to Freedom of Speech and Expression, and Article 25(1), which gives the Right to Free Conscience, and to Profess, Practice and Propagate the religion of their choice, both are clearly violated, if every student is compelled to sing the National Anthem, even if it goes against their faiths. The Court also said that there was no law that held guilty those who disrespected the National Anthem just because they refused to sing it.

As for the Prevention of Insults to National Honour Act, 1971, which aims to protect the National Flag and other symbols of National Interest, there is no obligation to stand up or sing when the National Anthem is being played or sung. Section 3 of the Act lists punishment for those who provide hindrance in the playing of the National Anthem, or cause disturbance during the same, but then again, there is no punishment for not singing it or not standing up for it. The Ministry of Home Affairs has come up with some rules regarding the National Anthem, and they form a part of the Act. But the provisions do not contain any punishment in case they are violated. Moreover, the Constitution presides over any such law, and the Fundamental Rights cannot be taken away easily.

In the instant case, even though the students did not sing the Anthem, they did stand in respect towards it and did not pull any act which would otherwise cause disturbance. Hence, the Court held that the students were not guilty of disrespect to the National Anthem and were wrongfully expelled from the school. The Court also held that the philosophy of our country teaches tolerance, and we should practice it.

Overview of Bijoe Emmanuel v State of Kerala Case

The case of Bijoe Emmanuel v State of Kerala is not one of its kind in India. In a recent matter of Salman v. State of Kerala[2], the police imposed a charge of sedition as under Section 124A of the Indian Penal Code on 6 people simply because they did not stand up while the National Anthem was being played in the cinema hall. The people, however, were granted bail since the Kerala High Court ruled that they had not committed any crime which would amount to a threat to the security of the nation. Similarly, a school in Uttar Pradesh was shut down because the National Anthem was not a part of the Independence Day programs that the school was hosting. On being asked, the owner stated that the words “bharat, bhagya, vidhata” went against the teachings of his religion. Another family was forced to exit a cinema hall because they did not stand up while the National Anthem was being played.

Trivial matters like these, when they reach the doors of the courts, take up the courts’ time and energy of the judges, and as a result, matters of genuine concern are lost due to lack of attention. The Constitution of India guarantees to every person the right to practice their religion, and it is a Fundamental Right, forming the basic structure of the Constitution, which cannot be abridged, and not at all by such inconsequential contentions. Moreover, patriotism is subjective, and there is no law which will hold a person guilty for not adhering to the principles of patriotism, because doing so would be outrageous, not to mention the various Fundamental Rights that will be violated. There is no legal provision that makes it mandatory to stand up or sing along when the National Anthem is being played or sung, and this enough is the reason for cases like Bijoe Emmanuel to cease from the society completely. To what extent one is patriotic is one’s own calling, and no one should be allowed to interfere in it. As far as serious offences against the nation are concerned, they fall into an entirely different category and have distinct essentials, which do not amount to not standing up for the National Anthem. It is not that the national symbols of our country should not be respected, it is just that the way one chooses to do so must not be questioned.

FAQs on Bijoe Emmanuel v State of Kerala Case

The case of Bijoe Emmanuel throws light on the Freedom of Speech and Expression. Explain

The expulsion of the students from the school clearly violated their Fundamental Right to Freedom of Speech and Expression, under Article 19(1)(a), because the freedom to speech and expression does not only mean the freedom to say or express what one desires, but also the freedom to remain silent where one desires. In the instant case, the students were simply exercising their freedom to stay silent, and were also exercising the Right to Religious Freedom under Article 25. Their expulsion rested on the sole fact that they chose to remain silent, thus violating their right, when there is no punishment in law to remain silent when the National Anthem is being played.

How did the Supreme Court approach the case of Bijoe Emmanuel v. State of Kerala

The Supreme Court in this case took a liberal approach. It stated that Article 19(1)(a), which guarantees the Right to Freedom of Speech and Expression, and Article 25(1), which gives the Right to Free Conscience, and to Profess, Practice and Propagate the religion of their choice, both are clearly violated, if every student is compelled to sing the National Anthem, even if it goes against their faiths. The Court also said that there was no law which held guilty those who disrespected the National Anthem just because they refused to sing it. Even though the students did not sing the Anthem, they did stand in respect towards it and did not pull any act which would otherwise cause disturbance. Hence, the students were not guilty of disrespect to the National Anthem and were wrongfully expelled from the school. The Court also held that the philosophy of our country teaches tolerance, and we should practise it.

Briefly state the facts of Bijoe Emmanuel v. State of Kerala

Three children were expelled from a school in Kerala because they did not sing the National Anthem in the morning assembly of the school, along with other students, reason being the children followed the religious beliefs of Jehovah’s witnesses, which did not permit them to indulge in any other ritual besides worshipping their God. The father of the children, aggrieved by the expulsion, filed a petition in the High Court of Kerala, but was rejected after the court stated that there was nothing in the National Anthem which could possibly hurt the religious sentiments of someone. Subsequently, the case went to the Supreme Court which delivered on the matter and rejected the verdict of the High Court.

[1] 1987 AIR 748.

[2] 2015 (1) KHC 260.

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Zara Suhail Ahmed

Zahra is a student at Aligarh Muslim University, pursuing a 5-year B.A. LLB course. Currently in her 4th year, Zahra opted for Law after completing most part of her schooling from Cambridge School, New Delhi. Zahra has interned under a few lawyers and firms, participated in various moot courts and similar events, and is proficient in research and written content. A strong believer that education is the greatest virtue, Zahra seeks to learn from every platform and individual, whether working alone or as a team. Although Zahra is keenly interested to pursue ADR (Alternate Dispute Resolution) as a career, she has kept her options open and is interested in examining the different career prospects that her profession has to offer. Zahra has diversified interests apart from her professional life as well. Not only a successful lawyer, but she also aspires to become a productive human being.


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