CASE ANALYSIS

Bijoe Emmanuel vs. State of Kerala.

Facts of the case

The case revolved around the National Anthem of India. The facts of the case
are as follows:

The case pertains to 3 students – Bijou, Binu Mol and Bindu Emmanuel who
studied in a school in Kerala. They attended the school every day and even
participated in the school assembly.
However, when the National Anthem was sung, they didn’t sing the National
Anthem along with the other students but stood in attention.
Their two elder sisters also studied in the same school and followed the same
practice and nobody ever objected to it.
One day in July 1985, a member of the legislative assembly attended the
assembly and noticed that the 3 children were not singing the National
Anthem and he thought that this behaviour of theirs was unpatriotic.
He raised this question in the Assembly and a commission was set up to
investigate the matter. The commission reported that the children were well
behaved and law-abiding and did not ever show any disrespect to the National
Anthem.
However, the Head Mistress expelled the students from the school under the
instructions of the Deputy Inspector of Schools.
The father of the children requested the headmistress to allow the children to
attend their classes in school till they received a government order/decision in
the matter. The Headmistress expressed her inability to do so.
The objection of the Emmanuel children was not the language or the
sentiments of the National Anthem. They did not sing the National Anthem,
but they always stood in when the National Anthem was sung to show their
respect to it. They did not sing only because of their belief and conviction that
their religion did not permit them to join any rituals except it be in their
prayers to Jehovah, their God.
Since the appellants were prevented from attending the school, they sought a
restraining order passed by the authorities. However, their writ petition was
first rejected by a single learned judge and then the division bench also
rejected the prayer of the children.
After this, the case was appealed by the father, in the Supreme Court through
a special leave petition in pursuant of Article 136 of the Constitution.

Issues raised
1) If the expulsion of the 3 students from a school in Kerala is justified under
Kerala Education Act (Section 36), Kerala Education Rules(Rule 6 and 9) and
Section 3 of Prevention of Insults to National Honour Act 1971?
2) Whether the expulsion of the children from the school are consistent with
the rights guaranteed under Article 19(1) and Article 25 of the Indian
Constitution?

Judgement
Expulsion of children from the school was being challenged in Kerala High
Court which upheld their expulsion as valid on the ground that it was their
Fundamental Duty to sing the National Anthem and they committed an offence
under the Prevention of Insult to National Honours Act, 1971.

Decision of Kerala High Court was appealed in Supreme Court of India.

Supreme Court, however, reversed the decision of the High Court of Kerala and
observed that they did not commit any offence. There was no law under which
their Fundamental Right under Article 19 (1)(a) could be curtailed. The right
under Article 19 (1)(a) can only be regulated by law and on the grounds
mentioned in the Indian Constitution and not be executive instructions. [Article
19 (1)(a) is a fundamental rights of every citizen to have freedom of speech
and expression subject to Article 19(2)]. They did not commit any offence
under the Prevention of Insults to National Honours Act, 1971, because they
stood up respectfully when the National Anthem was being sung. It was held
that the children's expulsion from the school was a violation of their
Fundamental Right under Article 19 (1)(a), which includes the freedom of
silence.
Supreme Court further held that the restriction on the freedom of religion can
be upheld only if it falls within the exceptions of clause (1) and clause (2) of
Article 25. It cannot be imposed on any other extraneous consideration.
Further, that the restriction must have the authority of law.