Libertatem Magazine

Bijoe Emmanuel and Ors. Vs State of Kerala

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In the year 1985, a matter of national importance came before Kerala high court and then it went to Supreme Court. The matter was concerned with the singing of the national anthem. This matter contradicts with religious beliefs of a sect called Jehovah’s witnesses in respect to article 25 and article 26 where freedom of religion is given. This case gained popularity because it was something related to national integrity. The two views were formed one view was that no one can force a person to sing the national anthem, it is not disrespectful to stand peacefully but not to sing the national anthem due to one’s own religious beliefs. While others believe that it will have an influence on others and no one will respect symbols of national importance anymore. The Kerala high court and Supreme Court of India have also given different decisions on it.


  • The petitioners were the three children who belong to a sect called Jehovah’s witnesses. They attend school.
  • In the morning assembly, when the national anthem was sung they stand respectfully but didn’t join in singing.
  • They believe that the god ‘Jehovah’ is the supreme power and it is contrary to their religious beliefs to worship any other authority.
  • They and their elder sisters who attended the same school have done this thing for several years, no one bothered.
  • In July 1985 a patriotic gentleman took notice and thought it was unpatriotic to not sing the national anthem. He happened to be a member of the legislative assembly.
  • He put a question in the assembly and a commission was appointed to enquire and report.
  • The commission reported that children showed no disrespect to the national anthem. But these matters of conscience are sensitive.
  • Under the instructions of the deputy inspector of schools, the headmistress expelled the three children from school on 26 July 1985.
  • The father of the children requested to permit his children to attend the school but his requests were denied.
  • Then the children filed a writ petition in high court restraining the authorities from preventing them to attend the school.


Kerala high court:

  • This case first originated in Kerala high court through a writ petition filed by the petitioners. Under Article 226 of the Indian constitution, high courts are given the right to issue the writ of mandamus which was filed in the present case.
  • The petitioners demanded to restrain the government authorities who were preventing them to attend school.
  • First a learned single judge and then a Division Bench rejected the prayer of the children.

Supreme court of India:

  • After being rejected by the high court of Kerala, the case came before Supreme Court under special leave to appeal that is provided under Article 136 of the Indian constitution. Under this right, Supreme Court may at its discretion interfere in any order, judgement, or decree passed by any court or tribunal in the territory of India.
  • The Supreme Court reversed the decision of the high court and allowed the appeal.


  • Can the pupils in the 4th respondent’s school belong to the religious group known as “Jehovah’s Witnesses” be compelled to sing the National Anthem contrary to their religious beliefs and faith, guaranteed under Articles 25 and 26 of the Constitution?
  • Are the rights guaranteed under Articles 25 and 26 absolute i.e., without exceptions, or in other words, are the petitioners entitled to fundamental rights without performing fundamental duties?


First issue:

The court in its judgement has rejected the plea of children to re-admit them in school and not to compel them to sing the national anthem due to their religious beliefs. The court said that Article 51A commands that every citizen should respect the national anthem and the code of conduct for students and teachers mention that students should sing the national anthem in chorus. Also, rule 6 of Kerala’s education rights should be considered.

Second issue:

The answer to the second issue exists in the interpretation of Article 25 and Article 26 done by the court.

Article 25 guarantees freedom of conscience and the right to freely profess, practice, and propagate religion. The right guaranteed under Article 25(1) is subject to public order, morality, and health. The law which falls under Article 25(2) would control the right of a person guaranteed under Article 25(1).

The freedom of the religious denomination to manage their religious affairs guaranteed under article 26 is subject only to public order, morality, and health.

The court in its judgement also referred to the doctrine developed in America “the secular regulation rule” to achieve the neutrality of the state with respect to religion. The secular regulation rule has been established by the Supreme Court, stating that a person cannot be exempted on the basis of religious belief if the law deals with a non-religious basis.

The court also observed that in the case Commissioner, H.R.E v. L.T. Swamiar, AIR 1954 SC 282 it has been said that:

It must be noted that freedom of religion is given in unrestricted terms under the American and Australian constitutions; limitations are introduced by courts of law on the basis of morality, order, and social protection.

The supreme court in the Swamiar’s case has also held that Article 25 (2) (a) freedom of religion is guaranteed except when they run counter to public order, health and morality.

From the above observations, the court has said in its judgment that rights guaranteed under Articles 25 and 26 are not absolute and subject to certain limitations.

Then the court laid emphasis on the issue that whether a person is entitled to get his fundamental rights without performing fundamental duties.

It has been observed that in Chandra Bhawan Boarding and Lodging v. the State of Mysore, AIR 1970 SC 2042 the court stated that fundamentals under part III and directives under part IV are complementary to each other. It has been also said that it is a fallacy to think that under our constitution there are only rights and no duties.

So following the dictum of the Supreme Court in the above case, the court in the present case stated that fundamental rights and fundamental duties are the two sides of a coin.


Ratio Decidendi is the rule of law on which a judicial decision is is binding on the lower is the reasoning behind the judgment given by the court. In the present case, the following points should be considered as ratio Decidendi:

  • Interpretation of Article 25 and Article 26: the court observed that the rights given under these articles are not absolute, it has exceptions. All persons are equally entitled right to freedom of religion but subject to public order, morality and health. Also, the conditions in article 25(2) put limitations on this right.
  • Interpretation of Article 51A-the court said that fundamental duties are complementary to fundamental rights. They are the two sides of the same coin. All the citizens should respect the national anthem and abide by fundamental duties.
  • The circular and code of conduct: The circular and code of conduct for students and teachers issued by the director of public instruction also form the basis of judgment.
  • Under clause 2 of the circular it is prescribed that it is compulsory for the whole school i.e., all students to participate in the singing of the national anthem, it also prescribes that for national integration basis must be the school.
  • Kerala education rights: rule 6 of Kerala education rights reads as “Any pupil who is deliberately insubordinate or mischievous or guilty of fraud or malpractice in connection with examinations or who is found guilty of any other offense under these rules or who by his proved conduct is in the opinion of the Headmaster likely to cause an unwholesome influence on other pupils, maybe, according to the degree of offense censured suspended or dismissed by the Headmaster.”
  • Commands of the Bible: The court has also observed commands of the bible with respect to the civil and social duties of a Christian.

“For rulers are not a terror to good works, but to the evil, Wilt thou then not be afraid of the power? Do that which is good and thou shall have praise of the same.”

These lines from the holy bible clearly show that the believers of Christianity whether he belongs to ‘Jehovah’s Witnesses’ or otherwise are “subject to the governing authorities.

These were the points that are observed as ratio Decidendi from the judgment.


An obiter dictum is the opinion of the judge in judgment which is not directly related to case law and also not an essential part of the judgment. It is not binding as it is not relevant enough.

  • Secular regulation rule: the court’s observation about American and Australian courts view that limitations should be imposed on freedom of religion on grounds of morality, order, and social protection
  • Australian high court opinion: the Australian high court has observed that the complete protection of all religious beliefs might result in the disappearance of organized society because some religious beliefs, as already indicated, regarding the existence of organized society as essentially evil.

Supreme Court in this case

On August 11, 1986, the Supreme Court overruled the High Court of Kerala in the case of Bijoe Emmanuel v. the State of Kerala. The Court held that expelling the children based on their conscientiously held religious faith violated the Constitution of India. Justice O. Chinnappa Reddy stated: “No provision of law obliges anyone to sing.” The Court ordered the school authorities to readmit the children.

Ratio decidendi: The Court noted that the right of free speech and expression also includes the right to remain silent and that standing for the national anthem showed proper respect.


Union of India v. Jindal

In the year 2004, Supreme Court said that it is a fundamental right to fly the national flag under article 19 right to expression of the Indian constitution. But it’s subject to reasonable restrictions. The flag cannot be used for commercial purposes and also acts like the burning of the national flag would amount to disrespect.

In Bijoe Emmanuel supreme court had laid down a rule that under the freedom of speech and expression, the right to remain silent also exists, so no one can compel the children to sing the national anthem. This decision was cited in this judgement.


The case decided by Kerala high court was rightly decided because:

  • Firstly, the petitioners who claim they to be body corporate of Christians called Jehovah witnesses should abide by the lines of the holy bible which states that you should respect and praise the ruler as ruler is sent by God to do good for countrymen’s.
  • Secondly, Supreme Court said that the circular, code of conduct for teachers and students, and rule 6 of Kerala education rights have no statutory, why do they exist? All students will not abide by the other rules of these laws.
  • Thirdly, three children not singing the national anthem will definitely have some influence on other is unpatriotic to stand and not sing the national anthem of one’s own country with one’s own countrymen.


From time to time there arise conflicts between religious beliefs and issues of national peace, integrity, and sovereignty. The courts of law had protected the rights of citizens except when they run counter to national integrity. Kerala high court had given its decision to ensure national integrity and patriotism but Supreme Court had given importance to the right of children of speech and expression. Both the decisions were based on the interpretation of articles 25, 26, and article 19. A person can enjoy his rights given under the Indian constitution but those rights are subject to some exceptions also.

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