Man's relation to his God was made no concern of the State. He was granted the
right to worship as he pleased and to answer to no man for the variety of his
The instant case is one of the landmarks judgements of the recent past. The case
involves a conflict between freedom of religious conscience and patriotism. The
approach of the Hon'ble Supreme Court of India to interpret Article 19 (1) (a)
read with Article 25(1) makes it a landmark case.
The issues raised in the
instant matter was whether mere standing and not singing the national anthem
under a religious belief can be protected under Article 19 (1) (a) and 25 (1) of
the Constitution of India?
The Court decided it in affirmative and ruled that
the fundamental rights of freedom of speech and expression and freedom of
religion of the Appellants were violated by the school authority. Though, the
Supreme Court of India came to a just and reasonable conclusion however it
missed an opportunity to develop a sound and detailed jurisprudence on
fundamental rights of speech and expression, religious freedom and fundamental
duties concerning patriotism. Therefore, this comment attempts to fill the
vacuum left in the judgment.
The Appellants, Bijoe, Binu Mol and Bindu Emmanuel are faithful of Jehovah's
witnesses. In the school, they refused to sing the National Anthem in the
morning assembly as they honestly believe that their religion does not permit
them to join any rituals except it be in their prayers to their God 'Jehovah'.
However, they always stood up in respectful silence in the school assembly. On
26th of July 1985, the Head Mistress expelled the Appellants from the School
under the instructions of the Deputy Inspector.
On filing a writ petition
challenging the action of the school authority in Kerala High Court, first a
single Judge then Division Bench rejected the prayer of the Appellants stating
that there was no word or thought in the National Anthem which could offend
anyone's religious susceptibilities. However, the Supreme Court has taken a
liberal approach and observed that not joining the singing of the National
Anthem neither prevents the singing of the National Anthem nor causes
disturbance to any assembly engaged in such singing so as to constitute an
offence under section 3 of the Prevention of Insults to National Honour Act.
This judgment can be briefly understood under the following heads.
Legality and Reasonability of the Circulars
The Supreme Court analysed the circulars issued by the Director of Public
Instruction, Kerala and ruled that there is no legal sanction behind these
circulars. To substantiate its position, the Court relied on the case of Kharak
Singh v. State of U.P
., where the same court refused to accept the police
regulation which was a mere departmental instruction as a law for the purpose of
Article 19 (2).  In this regard, it must be noted that the fundamental
rights of the people can be taken away only through a procedure established by
law which must be just, fair and reasonable.
Therefore, relying on the cited
judgment, the circulars issued by the authority in the instants case cannot form
the foundation of any action aimed at denying to citizens, fundamental rights
under Article 19 (1) (a) of the Constitution. Further, the authorities could not
establish that the 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 to an offence. Therefore, the circulars cannot be
considered as reasonable restrictions provided under Article 19 (2).
Concerning the legality of the circulars, the Court relied on the judgment of
this Court in Kameshwar Prasad v. State of Bihar
, where it invalidated Rule 4 of
Bihar Government Servant Conduct Rules which prohibited any form of
demonstration even if such demonstration was innocent and incapable of causing a
breach of public tranquillity.
The Court observed that a blanket ban on any kind
of demonstration was unreasonable and cannot be protected under Article 19 (2)
of the Constitution. Therefore, the Court in light of the cited judgments
held in the instant case that the expulsion of the children from the school for
not joining the singing of the National Anthem under the Circular which was
neither reasonable nor legal violates the fundamental right of the Appellant
under Article 19 (1) (a) of the Constitution.
Protection of Essential Religious Practice
The Court went ahead and checked the essentiality of the belief of Jehovah's
Witnesses by referring several foreign and domestic judgments involving similar
issues. Eventually, the court concluded that it is evident that Jehovah's
Witnesses wherever they are, do hold religious beliefs that may appear strange
or even bizarre to us, but the sincerity of their belief is beyond question.
Therefore, referring to the case of Rati Lal Panachand Gandhi v. State of
 where the Court held that the question is not whether a particular
religious belief or practice appeals to our reason or sentiment rather the
question should be whether the belief is genuinely and conscientiously held as
part of the profession or practice of religion.
In the instant case, the belief
of not joining any other ritual except of the God Jehovah is being practiced by
the Jehovah's witnesses all over the world and therefore, attracts the
protection of Article 25 (1) of the Constitution.
Though, the author agrees that the Supreme Court delivered constitutionally just
and fair judgment in this case, however, it missed the opportunity to develop a
sound and detailed jurisprudence on fundamental rights of speech and expression,
religious freedom and fundamental duties concerning patriotism. Therefore, the
following analysis attempts to fill the vacuum left in the judgment.
Reasonability of the Restrictions on Fundamental Rights
The Appellants do have the fundamental right to express their belief by not
joining any other ritual except for their God. But, the question is whether
not joining such singing can harm the interests of the sovereignty and
integrity, security of the state, friendly relation with foreign states, public
order, decency or morality or in relation to contempt of court, defamation or
incitement to an offence which is mentioned as a reasonable restriction under
Article 19 (2) of the Constitution of India.
Except for decency or morality,
none of the other grounds seems relevant in this matter. Here, decency means,
things required for a reasonable standard of life, whereas, morality means
principles concerning the distinction between right and wrong or good and bad
behaviour. In the instant case, not joining the singing by the Appellants
cannot be considered a wrong or bad behaviour as they have reason or
justification for their action which is protected by the Constitution of India
itself. Jehovah's Witnesses believe that whenever 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.
Indeed, the Appellants only obey their
belief and at the same time, they offer respect to the National Anthem and
National Flag by respectfully standing in the assembly. Hence, their action
cannot be considered immoral or indecent. Since their freedom of speech and
expression were not against any of the grounds mentioned in clause 2 of Article
19, the state cannot put any reasonable restriction on the same. Hence, by
expelling the Appellants, the school authority infringed the fundamental right
of the appellant under Article 19 (1) (a) of the Constitution of India.
Freedom of Religion under the Indian Constitution
Turning to the next and very important question of law that whether the act of
the Appellants is protected under Article 25 (1) of the Constitution, which
states that subject to public order, morality and health and to the other
provisions of this part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practice and propagate
The Supreme Court observed in the instant case that Article 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 ability of even an
insignificant minority to find its identity under the country's Constitution.
The Court very greatly observed that Appellants were not engaged in any alleged
religious ceremonies which may be injurious to the moral tone of the school and
mere refraining from joining the singing do not injure the moral tone.
Therefore, the belief or practice of the Appellants was protected under Article
25 (1) of the Constitution of India.
It is submitted that the position of the Supreme Court on Article 25 of the
Constitution in the instant matter though draws a just and fair conclusion,
however, fails to substantiate it with a proper and detailed reasoning.
noted that the freedom of religious belief means the right to worship God
according to the dictates of one's own conscience or to entertain disbelief
in any religion. The fundamental right guaranteed under Article 25 is an
individual right as distinct from the right of an organised body like a
religious denomination or any section thereof, dealt with under Article
Therefore, in the instant matter, the Appellants hold the rights under
Article 25 to practice, profess and propagate their belief as it was the dictate
of their conscience not to join any other ritual except it be in their prayers
to Jehovah their God. It should be noted that Article 25 states that every
person has a fundamental right not merely to entertain a religious belief of his
choice, but also to exhibit this belief and ideas in a manner which does not
infringe the religious right or personal freedom of others.
In this regard,
it becomes important to note that the disputed action of the appellant has not
infringed the religious right or personal freedom of others. The freedom of
profession means the right of the believer to state his creed in public whereas
freedom of practice means his right to give it expression in forms of private
and public worship.
Further, Article 25 protects those beliefs or practices which are considered as
the essence of a religion. The primary contribution of The Commissioner, Hindu
Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar
of Sri Shirur
Mutt. to the legal disclosure on religion was the recognition that
protection under Article 25 and 26 was not limited to matters of doctrine or
belief only but extended to acts done in pursuance of religion and therefore
contained guarantees for rituals, observance, ceremonies, and modes of worship.
Another important principle enunciated by Mukherjee J. was the complete
granted to religious denominations to decide which religious practices
were essential for them. It was further established in another judgment
delivered by the Supreme Court where it held that what constitutes an essential
part of a religion is primarily to be ascertained with reference to the doctrine
of that religion itself. It means, if there is the belief of the community,
a secular judge is bound to accept that belief and it is not for him to sit in
judgment on that belief.
Further, the Supreme Court of India in Durgah Committee v. Syed Hussain
 kept superstition apart from the essential practices doctrine of
religion and said that the court is not only going to play the role of the
gatekeeper as to what qualified as a religion but now it is also taking up the
role of sifting superstition from real religion
The question arises here,
whether the disputed practice of Jehovah's witnesses is superstitious or not?
Justice Gajendragadkar in Govindlalji rejected the contention raised by a
counsel who quoted from the Australian Court ruling in Adelaide Company of
Jehovah's Witnesses v. Commonwealth that what is a religion to one is
superstition to another
, and stated that this school of thought may raise a
question on each and every belief and practice of a particular religion and it
may declare them superstition too. The instant matter involves the religious
belief of the Appellants, which is found to be very consistent and beyond
Although, superstition carries some elements of fear in the mind
of the people who follow it, whereas Jehovah's Witnesses follow the said belief
to show their spirituality towards their God without any kind of fear.
Therefore, superstition must be distinguished from the essential practice of
Jehovah's witnesses as an essential part of their religion.
International Obligation to Protect Religious Freedom
Apart from the Constitution, even International Charters advocates for the
religious rights of the people. According to Article 18 of Universal
Everyone has the right to freedom of thought, conscience, and religion; this
right includes freedom to change his religion or belief, and freedom, either
alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship, and observance."
Further, Article 18 (1) of Covenant on Civil and Political Rights, 1966 states
almost the same provisions which were there in the Universal Declaration.
However, Clause 3 of ICCPR, 1966 states that:
Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety,
order, health, or morals or the fundamental rights and freedom of others
It is submitted that Article 18 of the Universal Declaration and Article 18 (1)
of ICCPR have been duly represented in Article 25 of the Constitution with a
little modification. On the other hand, Article 18 (3) has been also taken care
of in the same Article of the Constitution which stipulates certain limitations
on the rights guaranteed. These provisions have been substantially discussed in
this section under Article 25 of the Constitution.
Duty of the Secular and Democratic State
Undisputedly, Indian is a secular state and is duty-bound to respect the
religious affairs of its people. The state may regulate the belief or practice
of a community that is secular in nature, but only when it is required in the
public interest or to resolve a dispute within the community itself.
simple definition of secular matters states that all the matters which affect
the civil life of society falls under the secular matter. Secular matters such
as marriage, divorce, adoption, succession rights, etc. may be regulated in the
public interest or in the interest of the targeted community. But the state
cannot treat a religious belief or practice as a secular matter.
It should be
noted that the belief or practice of the Appellants in the instant matter was
not secular in nature as the belief or practice of the appellant did nowhere
affect the civil life of society. Therefore, the state or the school authority
is not authorised by the Constitution to regulate such matters. Hence, the
school authority violated the fundamental right of religious freedom of the
appellant by expelling them from the school.
One of the hallmarks of any democratic society is to respect another's religion
or beliefs such that those persons wishing to follow their faith or convictions
should not be interfered with by the state or authorities. Article 9 (1) of
European Convention on Human Rights, 1950 principally concerns the right of an
individual, not only the freedom to belong to a faith or possess different
beliefs (which include persons such as agnostics, atheists, pacifist, sceptics,
etc.) but also to manifest that religion or belief via the means of worship,
teaching, practice, and observance.
The Supreme Court of India has observed in Shirur Mutt case
that 'what sub-cl.
(a) and cl. (2) of Article 25 contemplates is not state regulation of the
religious practices as such which are protected unless they run counter to
public health or morality but of activities which are really of an economic,
commercial or political character though they are associated with religious
Therefore, the disputed act or omission of the Appellants in the
instant matter needs to run counter to any of the above-mentioned conditions so
that it may be regulated by the state. But as already discussed above, the
Appellants have not fulfilled any of such conditions in this case. Therefore,
neither school authority nor the state has the right to interfere in the
religious belief or practice of the Appellants.
This case could be a classic example of state interference in people's right to
free speech and expression and freedom of religion in the name of patriotism.
But the Supreme Court performing the duty of guardian of the Constitution of
India remarkably taught the state that the Constitution does not allow the state
to seek more patriotism from the people than what is allowed by the Constitution
The state must remain secular, but it must not expect the people to be
secular against their will. Because such expectation directly flies into the
secular character of the state, which is a basic structure of the
Constitution. Moreover, international obligations also mandate India to
respect the religious freedom of the people. Indeed, this paper cherishes the
great discovery of the Supreme Court in the instant case that as follows:
Our tradition teaches tolerance; our philosophy preaches tolerance; our
constitution practices tolerance.
- AIR 1987 SC 748
- U.S. v. Ballard, 322 US 78 (1944).
- Kharak Singh v. State of U.P., Cri LJ 329 (1963).
- Kameshwar Prasad v. State of Bihar, AIR 1166 (SC:1962).
- Adelaide Company of Jehovah's Witnesses v. Commonwealth, 67 CLR 116
(1943); Minersvill School District v. Gobitis, 84 Law Ed. 1375 (1939); West
Virginia State Board of Education v. Barnette, 87 Law Ed 1628 (1942); Donald v.
The Board of Education for the City Hamilton, OR 518 (1945).
- Rati Lal Panachand Gandhi v. State of Bombay, 1 SCR 1055 (1954).
- India Const. art. 19 (1).
- India Const. art. 19 (2).
- Decency, Oxford Dictionary, https://en.oxforddictionaries.com/definition/decency.
- Morality, Oxford Dictionary, https://en.oxforddictionaries.com/definition/morality.
- Supra 4.
- India Const. art. 25 (1).
- Downes v. Bidwell, 182 US 244 (1901).
- Everson v. Board of Education, 333 US 1 (1947).
- Supra 5.
- Lily Thomas v. Union of India, AIR 1650 (SC:2000)
- Commr., H.R.E. v. Lakshmindra, SCR 1005 (1954).
- The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt., AIR 282 (SC:1954
- Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, AIR 2984
- Jamshedji Cursetjee Tarachand v. Soonabhai, 33 ILR 122 (Bom:1909)
- Durgah Committee v. Syed Hussain, AIR 1402 (SC:1961)
- Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1638
- Article 18, Universal Declaration, 1948
- Covenant on Civil and Political Rights, 1966
- India Const. art. 25 (2) (a)
- vol. 6, Durga Das Basu, Commentary on the Constitution of India, (9th
- European Convention on Human Rights, 1950.
- Supra 17
- Kesavananda Bharati v. State of Kerala, AIR 1461 (SC:1973)