Constitutionalising Silence: Bijoe Emmanuel v. State of Kerala

The author is Tanuj Upadhyay, a third year student at the Campus Law Centre, and the Contributory Editor at Awaaz.


What does it mean to say one has a right to freedom of speech and expression? Is the right to freedom of religion an uneasy compromise with the idea of unity? What happens when a minority holds a seemingly strange but sincere belief? Is the talk of Constitutional tolerance a hollow rhetoric? These are but a few of the questions that were tackled in the oft-quoted Bijoe Emmanuel case.


In 1985, a controversy broke out in the sleepy town of Kidangoor when three students were suspended from school after a complaint that they didn’t sing the national anthem. The three child appellants, Bijoe, Binu Mol and Bindu Emmanuel, were adherents of Jehovah’s Witnesses. Every day, during the morning assembly, when the National Anthem was sung, they stood up respectfully but did not sing. This was never an issue for others until July 1985, when an MLA took notice of it. He thought it was an unpatriotic act and raised the issue in the Assembly. A Commission was appointed whose report confirmed that the children were ‘law-abiding’ and showed no disrespect to the National Anthem. However, under the instructions of the Deputy Inspector of Schools, the Head Mistress expelled the children from the school on July 26, 1985. A Writ Petition seeking a restraining order against the suspension was filed in the High Court. First, a learned single Judge and then a Division bench rejected the prayer of the children. Finally, the petitioners reached the Supreme Court by special leave under Article 136 of the Constitution.

Framing the issues

The Supreme Court speaking through O. Chinnappa Reddy, J. framed the whole issue in two simple legal questions. The Court asked itself whether the suspension order was consistent with the petitioners’ rights guaranteed under Articles 19(1) (a) and 25 of the Constitution. And whether the silence of the students when the National Anthem is sung amounts to disrespecting ‘National Honour’.

Matters of conscience

Article 25 of the Indian Constitution reads as follows-

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 religion.

Before the Court could test the State’s actions on this touchstone, it found it fit to establish that the students’ actions were motivated by honest belief. It did so by exploring similarly situated cases concerning Jehovah’s Witnesses in other jurisdictions. Two cases stood out, Minersvill School District v. Gobitis (1939) 84 Law Ed 1375 and West Virginia State Board of Education v. Barnette (1942) 87 Law Ed 1628. Both cases were decided by the American Supreme Court in which Jehovah’s Witnesses claimed that they could not be compelled to salute the flag of the United States while reciting the pledge of allegiance. While the Court’s conclusions in the above-mentioned cases were diametrically opposite, it helped the Indian Supreme Court establish that Jehovah’s Witnesses had stood for such beliefs all over the world. The Court stated-

The petitioners have not asserted these beliefs for the first time or out of any unpatriotic sentiment… 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.

Right to freedom of religion

The Court took a liberal view of Article 25 of the Constitution. It put the onus on the State to justify its actions on the limited grounds mentioned within Article 25 itself. Quoting extensively from Gobitis(supra) and the case of Barnette (supra) which overturned it, the Court asserted-

… 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 reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.

This assertion of the Court reflects Justice Jackson’s opinion in Barnette (supra)-

If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein… To enforce those rights today is not to choose a weak government over a strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.

Thus the Court held Article 25 as an ‘article of faith’ in the Constitution. An enabling provision that allowed the smallest minority to express itself under the country’s Constitution. The State’s action, based on this reasoning, was declared to be an unjustified incursion into the petitioners’ right to freedom of religion.

Right to remain silent

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) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or concerning contempt of court, defamation or incitement to an offence. Does this Article only contemplate expressive speech or is one’s Constitutional right to remain silent also protected? The Court expansively interpreted Article 19. It stated that there was no provision of law which obliges anyone to sing the National Anthem. It also rejected the claim that not joining in the singing of the National Anthem while standing up respectfully could be equated with an act of disrespect.

The Court laid bare Section 3 of The Prevention of Insults to National Honour Act, 1971-

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 may extend to three years, or with fine, or with both.

The act of standing respectfully sans singing did not prevent others from singing nor cause disturbance to an assembly engaged in such singing. Since it did not meet the requirements of Section 3, it did not constitute the offence mentioned therein.

In the absence of any explicit statutory provisions that enjoined students to sing the National Anthem the State relied on two legal circulars to substantiate its action. Both these circulars had been issued by the Director of Public Instruction and had no legal sanction behind them. This was in direct violation of the settled law as laid down in Kharak Singh v. State of U.P. 1963 Cri LJ 329. Only a ‘law’ having a statutory force and not a mere executive or departmental instruction could be used to curtail Fundamental rights under Article 19. This chain of legal reasoning led to a single conclusion: the order of expulsion for not joining the singing of the National Anthem, though standing up respectfully in silence, violated the guarantees under Article 19(1)(a).

Constitutional tolerance

All the legal issues were held in the favour of the appellants. The Court found that the State had infringed their Fundamental Rights under Articles 19(1)(a) and 25(1). The appeal was allowed and the judgement of the High Court was set aside. It ordered the respondent authorities to re-admit the children into school and to facilitate the pursuit of their studies by giving them the necessary facilities.

Interestingly, it is not just the emphatic defence of Fundamental Rights that has imprinted the case in legal imagination. The Court’s parting remark, reaffirming its fidelity to Constitutional principles, has been even more memorable-

We only wish to add: that our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.

It was this idea of Constitutional tolerance that guided Justice Sudhanshu Dhulia in the highly publicized Hijab case wherein he termed Bijoe Emmanuel (supra) as the “guiding star”.

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