# BIJOE EMMANUEL & ORS v. STATE OF KERALA & ORS - **Citation:** [1986] 3 S.C.R. 518 - **Court:** Supreme Court of India - **Decided:** 1986-08-11 - **Bench:** 0. Chinnappa Reddy, M.M. Dutt - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bijoe-emmanuel-ors-v-state-of-kerala-ors-9088 - **Pages:** 22 ## Headnote c Constitution o.f India, Art. 19(/)(a) and 25(/)-National Anthem-Singing o.f-Compulsion despite genuine conscientious religious objection-Whether contravenes Fundamental Rights. , D Prevention o.f Insult to National Honour Act, 1960, s. 3National Anthem-Singing o.f-Re.fusal on genuine conscientious religious faith-Whether offence committed. Kera/a Education Act, 1959 read with the Kera/a Education Rules, 1959, s. 36, Chapter IX Rule 6--National Anthem-Singing o.fRefusal by school pupils on genuine conscientious religious faithWhether misconduct entitling censure suspension dismissal of pupil. E _The appellants-three children belong to a sect called Jehovah's Witnesses who ·worship only Jehovah-the Creator and none other. They refused to sing the National Anthem: 'Jana Gana Mana' because, according to them, it is against the tenets of their religious faith-not the words or the thoughts of the Nl!tional Anthem-but the singing of it. 4 F They desisted from actual singing only because of their aforesaid honest belief and conviction but they used to stand up in respectful -J silence daily, during the morning assembly when the National Anthem ' was sung. A Conunission was appointed to enquire and report, and it reG ported that the children were "law abiiling" and that they showed no disrespect to the National Anthem. However, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the appellants from school from July 26, 1985. A represe'ltation by the father of the children to the Education H Authorities requesting that the children may be permitted to attend the 518 ' • • I .4. B. EMMANUEL v. STATE 519 school pending orders from the Government having failed, the appellants filed a Writ Petition in the High Court seeking an order restraining the authorities from preventing them from attending the school. A single Judge and then a Division Bench rejected the prayer of the appellants. Allowing tGe appeal hy Special Leave, to this Court, HELD: I. I. The Fnndamental Rights of the appellants under Art. J9(1)(a) and 25(1) have been infringed and they are entitled to be protected. The expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the niorning assembly though they do stand respectfully when the National Anthem is sung, is a violation of the fundamental right to freedom of conscience and freely to profess, practice and propagate religion. Therefore, the judgine11t of the High Court is set aside and the respondent antborities are directed ,.,to-~admit the children into the school, to permit them to pursue their studies without hindrance and to facilitate the pursuit of their studies by giving them the necessary facilities. [538D-E; 539-C-D] 1.2 There is no provision of law which obliges anyone to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing. Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in suCh singing so as to constitute the offence mentioned in s. 3 of the Prevention oflnsults to National Honour Act. [5l7B-G] 2.1 Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and expression, but Article 19(2) provides that nothing in Article 19(1)(a) sball prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the said right. Art. 25(1) guarantees !o all persons freedom of conscience and tlte right freely to pi:ofess, practise and propagate religion, subject to order, ## Text _Characters 0–39,816 of 50,841. This is a partial read: ask again with offset=39816 for what follows._ A BIJOE EMMANUEL & ORS. v. STATE OF KERALA & ORS. B AUGUST 11, 1986 [0. CHINNAPPA REDDY AND M.M. DUTT, JJ.] c Constitution o.f India, Art. 19(/)(a) and 25(/)-National Anthem-Singing o.f-Compulsion despite genuine conscientious religious objection-Whether contravenes Fundamental Rights. , D Prevention o.f Insult to National Honour Act, 1960, s. 3National Anthem-Singing o.f-Re.fusal on genuine conscientious religious faith-Whether offence committed. Kera/a Education Act, 1959 read with the Kera/a Education Rules, 1959, s. 36, Chapter IX Rule 6--National Anthem-Singing o.fRefusal by school pupils on genuine conscientious religious faithWhether misconduct entitling censure suspension dismissal of pupil. E _The appellants-three children belong to a sect called Jehovah's Witnesses who ·worship only Jehovah-the Creator and none other. They refused to sing the National Anthem: 'Jana Gana Mana' because, according to them, it is against the tenets of their religious faith-not the words or the thoughts of the Nl!tional Anthem-but the singing of it. 4 F They desisted from actual singing only because of their aforesaid honest belief and conviction but they used to stand up in respectful -J silence daily, during the morning assembly when the National Anthem ' was sung. A Conunission was appointed to enquire and report, and it reG ported that the children were "law abiiling" and that they showed no disrespect to the National Anthem. However, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the appellants from school from July 26, 1985. A represe'ltation by the father of the children to the Education H Authorities requesting that the children may be permitted to attend the 518 ' • • I .4. B. EMMANUEL v. STATE 519 school pending orders from the Government having failed, the appellants filed a Writ Petition in the High Court seeking an order restraining the authorities from preventing them from attending the school. A single Judge and then a Division Bench rejected the prayer of the appellants. Allowing tGe appeal hy Special Leave, to this Court, HELD: I. I. The Fnndamental Rights of the appellants under Art. J9(1)(a) and 25(1) have been infringed and they are entitled to be protected. The expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the niorning assembly though they do stand respectfully when the National Anthem is sung, is a violation of the fundamental right to freedom of conscience and freely to profess, practice and propagate religion. Therefore, the judgine11t of the High Court is set aside and the respondent antborities are directed ,.,to-~admit the children into the school, to permit them to pursue their studies without hindrance and to facilitate the pursuit of their studies by giving them the necessary facilities. [538D-E; 539-C-D] 1.2 There is no provision of law which obliges anyone to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing. Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in suCh singing so as to constitute the offence mentioned in s. 3 of the Prevention oflnsults to National Honour Act. [5l7B-G] 2.1 Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and expression, but Article 19(2) provides that nothing in Article 19(1)(a) sball prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the said right. Art. 25(1) guarantees !o all persons freedom of conscience and tlte right freely to pi:ofess, practise and propagate religion, subject to order, morality and health and to the other provisions of Part l!ll of the Constitution. Art. 51-A(a) of the Constitution enjoins a duty on e-•ery citizen of India "to abide by the Constitution and respect Its ideals and institutions, the National Flag and the National Anthem''. [526G·H; 527C] A B c D E F Ci H A B c D E F G H 520 SUPREME COURT REPORTS 11986) 3 S.C.R. 2.2 While on the one hand, Art. 25(1) itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part HI, on the nther hand, the State is also given the liberty to make a law to regulate or reside! any economic, financial, political or other secular activity which may be associated with religious practice and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Art. 25(1). Therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover ·whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial political or secular activity which may ;· be associated with religious practise or to provide for social welfare and reform_. [531G-H: 532A-R] · 2. 3 Any law which may be made under clauses 2 to 6 of Art. 19 to regulate the exercise of the right to the freedoms guaranteed by Art. I9(J)(a) to (e) and (g) must be 'a law' having statutory force and not a mere executive or departmental instructions. [529E-F] The two circulars on which the Department, in the instant case, has placed reliance have no statutory basis and are mere departmental instructions. They cannot, therefore, form the foundation of any action aimed at denying to citizens Fundamental Right under Art. 19(l)(a). Further it is not possible to hold that the two 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' and if not so issued, they cannot again be invoked to deny a citizen's Fundamental Right under Art. 19(l)(a). If the two circulars are to be so interpreted as to compel each and every pupil to join In the singing of the National Anthem despite his genuine, conscientious religious objection, then such compulsion would clearly contravene the rights guaranteed by Art. 19(l)(a) and Art. 25(1). [530C-E; 529C] Kharak Singh v. State of U.P., AIR 1963 SC 1295 and Kameshwar Prasadv. The State of Bihar, [1962] Supp. SCR 369 relied upon. · 3. The Kerala Education Act contains no provision of relevance and the appellants in the present case have never been found guilty of ~.· B: EMMANUEL v. STA TE OF KER. [REDDY, J .] 521 misconduct such as that described in Chapter IX, Rule 6 of the Kerala Education Rules. On the other hand, the report of the Commission, is to the effect that tbe children have always heen well-behaved, law-abiding and respectful. [5288-C] I 4. The qlMfilion is not whether a particular religions belief or practice appeals to our reason or oentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject, of course, to the inhibitions·contained therein. [533F-G] In the instaut ~, what the petitioners truly and conscientiously believe is not in doubt. They do not hold their beliefs idly and their conduct is not the outcome of any perversity. The petitioners have not asserted those beliefs for the (U'St time or out of any unpatriotic sentiment Jehovah's Witnesses, as they call tbems!'lves, appear to have always expressed and stood up for such beliefs all the world over. [523C-D] Adelaide Company of Jehovah's Witnesses v. The Commonwealth, 67 CLR 116; Minersville School District v. Gebitis, 84 Law Ed. US 1376; West Virginia State Board of Education v. Barnette, 87 Law Ed. 1628; Donald v. The Board of Education for ·the City Hamilton, 1945 Ontario Reports 518, Sheldon v. Fannin, 221 Federal Suppl. 766; The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR 1005; Rati Lal Panachand Gandhi v. The State of Bombay & Ors., [1954] SCR 1055; SP Mittal etc. etc. v. Union of India & Ors., [1983] 1 SCR 729 and Jagdishwaranand v. Police Commissioner, Calcutta, AIR 1984 SC 51 referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 870 ofl986 From the Judgment and Order dated 7.12.1985 of the Kerala High Court in W.A. No. 483of1985. 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 to3. · A B c D E F G 522 SUPREME COURT REPORTS [!986] 3 S.C.R. A P .. S. Poti, E .. M.S. Anam and James Vincent for the ResponB c D E F G H dents. 1 The Judgment of the Court was del.ivered by CIDNNAPPA 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 happ.ened 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-4han 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. We are afraid the High court misdirected itself and went off at a tengent. They considered, in minute detail,' each and every word and thought of the National Anthem and concluded that there was no word ,----, ' B. EMMANUEL v. STATE [REDDY, J.I 523 or thought in the National Anthem which.could offend anyone's religi~ ous susceptibilities. j3ut that is not the question at all. The objection of the petitioners is not to the language or the sentiments of the National Anthem: they do not sing the National Anthem wherever, 'Jana Gana Mana' in India, 'God save the Queen' in Britain, the Star-spangled banna in the United States and so on. in their words in the Writ Petition they say, "The students who are Witnesses do not sing the Anthem though they stand up on such occassions to sh'\lw their respect to the National Anthem. They desist from actual singing only because of their honest belief and conviction that their religion does not permit them to i.oin any rituals except it be in their prayers to Jehovah their God." That the petitioners truly and consdentioulsly believe what they say is not in doubt. They do not hold their beliefs idly and their conduct is not the outcome of any perversity. The petitioners have ·not asserted these beliefs for the first time or out of any unpatriotic sentiment. Jehovah's Witnesses, as they call themselves, appear to have always expressed and stood up for such beliefs all the world over as we shall presently show. Jehovah's Witnesses-and their peculiar beliefs though little noticed in this country, have been noticed, we find, in the Encyclopaedia Britannica and have been the subject of judicial pronouncements elsewhere. In 'The New Encyclopaedia Britannica' (Macropaedia) Vol. 10 page 538, after mentioning that Jehovah's Witnesses are "the adherents of the apocalyptic sect organized by Charles Taze Russell in the early 1870", it is further mentioned, " , .. , .. They believe that the Watch Tower Bible and Tract Society, their legal agency and publishirig arm, exemplifies .the will of God and proclaims the truths of the Bible against the evil triumvirate of organized religion, die business world, and the state ...... The Witnesses also stand apart from-civil society, refusing to vote, run for public office, serve in any atmed forces, salute the flag, stand for the National Anthem, or recite the pledge of allegiance. Their religious stands have brought dashes with various governments, resulting in law suits, mob vioience; itrtprisor).- ment, torture, and death. At one time more than 6,000 Witnesses were inmates of Nazi concentration camps, Communist and Fascist States usually forbid Watch Tower acti.vities. In the U.S. the sodety has taken 45 cases to the Supreme Court and has won significant victbries for freedoll! of religion and speech. The Witnesses have been less successful in claiming exemptions as ministers from military service - A c D E F G A 524 SUPREME COURT REPORTS 11986] 3 S.C.R. and in seeking to withhold blood transfusions from their children." Some of the beliefs held by Jehovah's Witnesses are mentioned in a little detail in the statement ·of case in Adelaide Company of Jehovah's Witnesses v. The Commonwealth, 67 CLR 116 a case deB cided by the Australian High Court. It is stated, c D E F G H "Jehovah's Witnesses are an association of persons loosely organised throughout Australia and elsewhere who regard the literal interpretation of the Bible as Fundamental to proper religious beliefs." "Jehovah's Witnesses believe that God, Jehovah, is the Supreme ruler of the universe. Satan or Lucifer was originally part of God's organization and the perfect man was placed under him. He rebelled against God and set up his own organization in challenge to God and through that organization had ruled the world. He rules and controls the world through material agencies suc_h as organized political, religious, and financial bodies. Christ, they believe, came lo earth to redeem air men who would devote themselves entirely to serving God's will and purpose and He will come to earth again (His second coming has already begun) and will over-throw all the powers of evil." 'These beliefs lead Jehovah's Witnesses to proclaim and teach publicly both orally and by means of printed books and pamphlets that the British Empire and also other organized political bodies are organs of Satan, unrighteously governed and identifiable with the Beast in the thirteenth chapter of the Book of Revelation. Also that Jehovah's Witnesses are Christians entirely devoted to the Kingdom of God, W.hich is "The Theocracy" that they have no part in the political affairs of the worlq and must not interfere in the least manner with war between nations. They must be entirely neutral and not interfere with the drafting of men of nations they go to war. And also that wherever 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. All laws of men, however, in harmony with God's law the Christian obeys. God's law is expounded and taught by Jehovah's Witnes- .i.- -+- B. EMMANUEL v. STATE (REDDY, J.i 525 ses. Accordingly they refuse to take an oath of allegiance to A the King or other constituted human authority." 'fhe case of Adelaide Company of Jehovah's Witnesses v. The Commonwealth (supra) arose out of an action to restrain the Commonwealth of Australia from enforcing the National Security (Subver-. sive Associations) Regulations to the Jehovah's Witnesses. Minersville School District v. Gobitis, 84 La\v. Ed. US 1375 and West Virginia State Board of Education v. Barnette, 87 Law Ed. 1628 are two cases decided by the American Supreme Court in which Jehovah's witnesses claimed that they could not be compelled tci salute the flag of the United States while reciting pledge of allegiance. In the latter case, Jackson, J. referred to the particular belief of the Witnesses which was the subject matter of that case, as follows: "The Witnesses are an unincdrporate<) body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs incl~de a literal version of Exodus, Chapter J:'X_, verses 4 and 5, which says "1bou shall not make upto the any · graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them, nor serve them." They consider that the flag is an "image" within this command. For this reason they refuse to salute it." Donald v. The Board of Education for the City Hamilton 1945 _()ntario Reports 518 is a case decid_ed by the .Court of Appeals of Ontario where the objection by Jehovah's Witnesses was to saluting the flag and singing National Anthem. The Court referred to the following belief of the Jehovah's Witnesses: "The appellants, father and sons, are affiliated with "Jehovah's Witnesses" and believe that saluting the flag and 1oining in the singing of the national anthem are both contr'ary to and_ forbidden by command of Scripture-the former because they consider the flag an "image" within the literal meaning of-Exodus, Chapter XX verses 4 and 5, and the latter because, while they respect the King and the · State, the prayer voiced in this anthem is not compatible B c D E F G H A 526 SUPREME COURT REPORTS [1986] 3 S.C. R. with the belief and hope which they hold in the early coming of the new world, in the government of which present temporal states can have no part." Sheldon v. Fannin, 221 Federal Supp. 766 a case decided by the United States District Court of Arizona also arose out of the refusal of B Jehovah's Witnesses to stand when the National Anthem was sung. c D E F G H The Couri observed: 'This refusal to participate, even to the extent of standing, without singing, is said to have been dictated by their religious beliefs as Jehovah's Witenesses, ,requiring their literal acceptance of the Bible as they Word of Almighty God Jehovah. Both precedent and authority for their refusal to stand is claimed to be found in the refusal of three Hebrew children Shadrach, Meshach and Abednege, to bow down at the sound of musical instruments playing patrioticreligious music throughout the land at the order of King Nebuchadnezzar of ancient Babylon ..... (Daniel 3 : 1328) For a similar reason, members of the Jehovah's Witnesses sect refuse to recite this Pledge of Allegiance to the Flag of the United States viewing this patriotic ceremony to be the worship of a graven iinage. (Exodus 20: 4-5). However, by some process of reasoning we need not tarry to explore, they are willing to stand during the Pledge of Allegiance, Out of respect for the Flag as a symbol of the religious freedom they enjoy (See Board of Education v. Barnette; 319 us 624 (1943)." It is evident that Jehovah's Witnesses, wherever they are, do hold religious beliefs which may appear strange or even bizarre to us, but the sincerity of their beliefs is beyond question. Are they entitled to be protected by the Constitution? Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and expression, but Article 19(2) provides that nothing in Art. 19(1)(a) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Art 25(1) guaraniees to all persons freedom of conscience and the ' -~. --}- B. EMMANUEL v. STATE [REDDY, J.] 527 right freely to profess, 'practise and propogate religion, subject to order, morality and health and to the other provisions of Part III of the Constitution. Now, we. have to examine whether the ban imposed by the ·Kerala education authorities against silence when the National Anthem is sung on pain of expulsion from the school is consistent with the rights guaranteed by Arts. 19(1)(a) and 25 of the Constitution. We may at once say that there is no provisions of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. It is true Art. 51-A(a) of the Constitution enjoins a duty on every citizen of India "to abide by the Constitution and respect its ideals and institu: tions, the National Flag and the National Anthem." Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing. · Parliament has not been unmindful of 'National Honour'. The Prevention of Insults to National Honour Act was enacted in 1971. While s. 2 deals with insult to the Indian National Flag and the Constitution oflndia, s. 3 deals with the National Anthem and enacts, "Whoever, intentionally prevents the singing of the National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which extend to three years or with find, or with both." Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in s. 3 of the Prevention of Insults to National Honour Act. The Kerala Education Act contains no provision of relevance. Section 36, however, enables the Government to make rules for the 'JlUrpose of carrying into effect the provisions of the Act and in particulat to provide for standards of education and courses of study. The Kerala Education Rules have been made pursuant to the powers conferred by the Act. Chapter VIII of the Rules provides for the organisation of instruction and progress of pupils. Rule 8 of Chapter VIII A B c D E F G H A B c D E F G H 528 SUPREME COURT REPORTS (1986] 3 S.C.R. provides for moral instruction and expressly says "Moral instruction should form a definite programme in every school but it should in no way wound the social or religious susceptibilites of the peoples generally." The rule goes on to say that 'the components of a high character' should be impressed upon the pupils. One of the components is stated to be 'love of one's country'. Chapter IX deals with discipline. Rule 6 of Chapter IX provides for the censure, suspension or dismissal of a pupil found guility of deliberate in-subordination, mischief, fraud, mal-practice in examinations, conduct likely to cause unwholesome influence on other pupils etc. It is not suggested that the present appellants have ever been found guility of misconduct such as that described in Chapter IX, Rule 6. On the other hand, the report of the Commission, we are told, is to the effect that the children have always been wellbehaved, law-abiding and respectful. The Kerala Education Authorities rely upon two circulars of September 1%1 and February 1970 issued by the Director of Public Instruction, Kerala. The first of these circulars is said to be a Code of Conduct for Teachers and pupils and stresses the importance of moral and spiritual values. Several generalisations have been made and under the head patriotism it is mentioned, ' "Patriotism L Environment should be created in the school to develop the right kind of patriotisms· in the children. Neither religion nor party nor anything of this kind should stand against one's love of the country. •. ,>--- 2. For national integration, the basis must be the school. ·+-- 3. National Anthem. As a rule, the whole school should participate in the singing of the National Anthem .. " In the second circular also instructions of a general nature are given and para 2 of the circular, with which we are concerned, is as follows: "It is compulsory that all schools shall have the morning Assembly every day before actual instruction begins. The whole school with all the pupils and teachers shall be gathered for the Assembly. After the singing of the National Anthem the whole school shall, in one voice, take B. EMMANUEL v. STATE [REDDY, J.) 529 the National Pledge before marching back to the classes." Apart fropt the fact that the circulars have no legal sanction behind them in the sense that they are not issued under the authority of . . any statute, we also notice that the circulars do not oblige each and every pupil to join in the singing even if he has any conscientious objection based on his religious faith, nor is any penalty attached to not joining the singing. On the other hand, one of the circulars (the first one) very rightly emphasise the importance of religious tolerance. It is said there, "All religions should be equally respected." If the two circulars are to be so interpreted as to compel each · and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection, then such co_mpulsion would clearly contavene the rights guaranteed by Art. 19(1)(a) and Art. 25(1). We have referred to Art. 19(1)(a) which guarantees to a:n citizens freedom of speech and expression and to Art. 19(2) which provides that nothing in Art. 19(1}(a) shall prevent a State fro'm making any law, in so far as such law impose reasonable restrictions on the exercise of the right conferred by Art. 19(l)(a) in the interests of the sovereignty and .integrity of India, the security of the State,_ friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The law is now well settled that any law which may be made under clauses (2) to (6) of Art. 19 to regulate the exercise of ihe right to the freedoms guaranteed by Art. 19(1)(a) to (e) and (g) must be 'a law' having statutory force and .not a mere executive or departmental instruction. In Kharak Singh v. State of U.P., AIR 1963 SC 1295 the question arose whether a police regulation which was a mere departmental instruction, having no statutory basis could be said to be a law for the purpose of Art. 19(2) to (6). The Constitution Bench answered the question in the negative and said, · 'Though learned Counsel for the respondent started by attempting such a justification by invoking s. 12 of the Indian Police Act he gave this up and -conceded that the regulations contained in Ch. XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be "a law" which the State is entitled A B c E F G A B ·c D E F G H 530 SUPREME COURT REPORTS 11986) 3 S.C.R. to make under the relevant els. (2) to ( 6) of Art. 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Art. 19(1), not would the same be "a procedure established by law" within Art. 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitle'd to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations." The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions. They cannot, therefore, form the foundation of any action aimed at denying to citizen's Fundamental Right under Art. 19(1)(a). Further it is not possible to hold that the two 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 ot morality, or in relation to contempt of court, defamatiOn or in.citement to an offence' and if not so issued, they cannot again be invoked to deny a citizen's Fundamental Right under Art. 19(1)(a). In Katneshwar Ptasad v. The State of Bihar, 11962) SUPP. SCR 369 a Constitution Bench of the court had to consider the validity of Rule 4A of the Bihar Government Servants' Conduct Rules which prohibited any form of demonstration even if such demonstration was innocent and incapable of causing a breach of public tranquility. The court said, "No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the · other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration-be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result." Examining the action of the Education Authorities in the light of Khatak Singh v. State of Uttar Pradesh (supra) and Kameshwar Pradesh v. State of Bihar (supra) we have no option but to hold that the expulsion of the children from the school not joining the singing of B. EMMANUEL v. STATE [REDDY,~.] 531 . "" the National Anthem though they respectfully stood up in silence . A when the Anthem was sung was violative of Art. 19(1)(a). Turning next to the Fundamental Right guaranteed by Art. 25, we may usefully set out here that irticl~ to the extent relevant: "25(1) Subject to public order, morality and health and to B -A. the other provisions of this Part, all persons are \lCjllally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. ~ (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any lawc (a) reguiating or restricting any economic, financial, political or -~ other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open D of Hindu religious institutions of a public character to all classes and ·sections of Hindus." (Explanations I and II not extracted as unnecessary) A,rticle 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 !lbility of E even an insignificant minority to find its identity under the country's -1 Constitution. This has to be borne in mind in interpreting Art. 25. -~ 0 We see that the right to freedom of conscience and freely to . ,+ profess, practise and propagate religion guaranteed by Art, 25 is sub- . ject to (1) public order, morality and health; (2) other provisions of Part III of the Constitution; (3) any law (a) regulating or res\tjctiμg F ~ any economic, financial, political or other secular activity which may be associated with. religious practi":"; or (b) providing for social welfare and reform or the throwing open y Art. 25 of the Constitution, has been explained in the well known cases of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR 1005 Rati Lal Panachand Gandhi v. The State of Bombay & Ors., [1954] SCR 1055 and S.P. Mittal Etc. Etc. v. Union of India & Ors., [1983] SCR 729. It is not necessary for our present purpose to refer to the exposition contained in these judgments except to say that in. the first of these cases Mukhetjea, J. made a reference to "Jehova's Witnesses" and appeared to quote with approval the views of Latham, CJ., of the Australian High Court in Adelaide Company v. The Commonwealth (supra) and those of the American Supreme Court in West Virginia State Board of Education v. Bamettee (supra). In Ratilal's case we also notice that Mukherjea, J .. quoted as appropriate Davar, J. 's following observations In Jamshedji v. Soonabai, 23 Bomaby ILR 122: "If ·this is the belief of the Commu"nity and it is proved undoubtedly to be the belief of the Zoroastrian community,-a secular Judge is bound to accept thatbelief-it is not for him to sit in judgement on that belid, he has no right to interfere with the conscience of a doner who makes a gift in favour of what he _believes to be the advancement of his religion and the welfare · of his community or mankind." We do endorse the view suggested by Davar J's observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part. _of the profession or practice of religion. Our personal views and rea.:tions are irrelevant. If the belief is · genuinely and conscientiously held it attracts the protection of Art. 25 but subject, of course, to the inhibitions contained therein. 1 In Minersville School Dist. v. Gobitis (supra) the question arose whether the requirement of participation by pupils and public schools in the ceremony of saluting the national ·flag did not infringe the liberty guaranteed by the 14th amendment, in the case of a pupil who re- ' A B c D E F G H .A ll c D E F G H 534 SUPREME COURT REPORTS [1986] 3 S.C.R. fused to participate upon sincere religious grounds. Frankfurter, J. great exponent of the theory of judicial restrain that he was speaking for the majority of the United States Supreme Court upheld the reqJJirement regarding participation in the ceremony of flag salutation primarily on the ground, "The wisdom of training children in patriotic impulses by those compulsions which necessarily prevade so much of the edueational process is not for our independent judgment ......... For ourselves, we might be tempted to say that the deepest patriotism is best engendered by giving unfettered scope to the most crochety beliefs ...... But the courtroom is not the arena for debating issues of educational policy. It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncracics among a people so diversified in racial origins and religious allegiances so to· hold would in effect make us the school board for the country.' That authority has not been giving to this Court, not should we assume it." Frankfurter, J's view, it is seen, was founded entirely upon his conception of judicial restraint.