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Bijoe Emmanuel & Ors vs State Of Kerala & Ors on 11 August, 1986
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& CIVIL APPELLATE JURISDICTION: Civil Appeal No. 870 of 1986 From the Judgment and order dated 7.12.1985 of the Kerala High Court in W.A . No. 483 of 1985.

F.S. Nariman, T.S. Krishnamurthy Iyer, K.J. John and M. Jha for the Appellants.

G. Viswanatha Iyer and Mrs. Baby Krishnan for Respondent Nos. I to 3.

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P.S. Poti, E.M.S. Anam and James Vincent for the Respondents.

The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The three child-appellants, Bijoe. Binu Mol and Bindu Emmanuel, are the faithful of Jehovah's Witnesses. They attend school. Daily, during the morning Assembly, when the National Anthem 'Jana Gana Mana' is sung, they stand respectfully but they do not sing. They do not sing because, according to them, it is against the tenets of their religious faith-not the words or the thoughts of the Anthem but the singing of it. This they and before them their elder sisters who attended the same school earlier have done all these several years. No one bothered, No one worried. No one thought it disrespectful or unpatriotic. The children were left in peace and to their beliefs. That was until July, 1985, when some patriotic gentleman took notice. The gentleman thought it was unpatriotic of the children not to sing the National Anthem. He happened to be a Member of the Legislative Assembly. So, he put a question in the Assembly. A Commission was appointed to enquire and report. We do not have the report of the Commission. We are told that the Commission reported that the children are 'law- abiding' and that they showed no disrespect to the National Anthem. Indeed it is nobody's case. that the children are other than well-behaved or that they have ever behaved disrespectfully when the National Anthem was sung. They have always stood up in respectful silence. But these matters of conscience, which though better left alone, are sensitive and emotionally evocative. So, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the children from the school from July 26, 1985. The father of the children made representations requesting that his children may be permitted to attend the school pending orders from the Government. The Head Mistress expressed her helplessness in the matter. Finally the children filed a Writ Petition in the High Court seeking an order restraining the authorities from preventing them from attending School. First a learned single judge and then a Division Bench rejected the prayer of the children. They have now come before us by special leave under Art. 136 of the Constitution.

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We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."

Sheldon v. Fannin (supra) was a case where the pupils refused even to stand when the National Anthem was sung. We do not have to consider that situation in the present case since it is the case of the appellants and it is not disputed that they have always stood up and they will always stand up respectfully when the National Anthem is sung.

Donald v. Hamilton Board Education (supra) was again a case of objection by Jehovah's witnesses to flag salutation and singing the national anthem. Gillanders, J.A., said:

"There is no doubt that the teachers and the school board, in the case now being considered, in good faith prescribed the ceremony of the flag salute only with the thought of inculcating respect for the flag and the Empire or Commonwealth of Nations which events of recent years have given more abundant reason than ever before to love and respect. If I were permitted to be guided by my personal views, I would find it difficult to understand how any well-disposed person could offer objection to joining in such a salute on religious or other grounds. To me, a command to join the flag salute or the singing of the national anthem would be a command not to join in any enforced religious exercise, but, viewed in proper perspective, to join in an act of respect for a contrary principle, that is, to pay respect to a nation and country which stands for religious freedom, and the principle that people may worship as they please, or not at all."