The efficient working of a democratic government can be owed to the voice of dissent. It is the critics who hold the government responsible for its actions and see that it doesn’t become despotic. This voice of dissent is protected by the Indian constitution so that people may form their opinion without state interference. This protection has been enshrined under article 19(1) (a)[1] as the freedom of speech and expression. It extends to protecting one’s view propagated by various mediums such as by words, writing, printing, picture, and press. Such a right to propagation of one’s views is not unlimited but is subject to reasonable restrictions as mentioned under the same article. Another right envisaged in the Indian constitution is the right to profess, propagate and practice religion. It has been laid down under article 25[2] and bestows upon the people the right to profess, practice or propagate religion. But even this right is subject to restriction based on public order, morality, health, etc. The interpretation of these articles is not only confined to the narrow terms in which they are stated but they encompass a multitude of other rights when read broadly. One such right is the right to remain silent which the courts created through their interpretive power. The genesis of this right is seen in the case of Bijoe Emmanuel vs. State of Kerala[3].
The factum of the case is that in a college where singing the national anthem was a regular practice, two students were instructed to sing it along with others. They stood silently as the anthem was being sung and stated their religion named Jehovah’s Witness disallows such singing. They were punished for this act against which they appealed in the Kerala High Court. The High Court held that there was no such religious denomination which prevented its follows from singing the national anthem[4]. The issue was reconsidered after an appeal was filed in the Supreme Court. The issue considered by the Supreme Court was three-fold. The first was whether there was a religious denomination named Jehovah’s Witness. Second was whether them not singing the national anthem would mean that they have disrespect it, amounting to a breach of article 51(a)[5] or whether it was simply a religious practice. Third was whether protection under article 25 and 19 will be given to them. To the first question the court differed from the opinion of the Kerala High Court and after careful consideration of the populace of USA and England the court concluded that in European Countries there do exist a small number of people who follow the religious denomination named Jehovah’s Witness. It is a prevalent belief in this denomination of religion that singing of national anthems is not allowed. This belief is genuine and conscientious. In pursuit of answering the second question the court examined the substance of article 51(a) and iterated that it puts a duty on the shoulders of Indian people to respect the Indian constitution, its national flag, and the national anthem. Any disrespect to the national anthem would constitute a breach of this article. The act of the students was further examined for which the court stated that although the students did not sing the national anthem, they stood up when it was being sung. Thus, in this way they did respect the national anthem and merely not singing it would not constitute disrespected against it. The court seems to have believed that since it was the faith in religion which restricted the singing of the national anthem it could be gathered that there was no disrespect. Further the court seems to have believed that if disrespect were intended then they would not have stood for the national anthem either. The act of standing for the national anthem coupled with absence of any intention of disrespecting it means that both the mental and physical element was absent under which it could be said that the national anthem was disrespected. Thus, the court held that the students did not violate article 51(a). The appeal could have been settled here since the court had already stated that the student did nothing wrong yet the court went on to examine whether protection could have been given to them under article 19 and 25. The court stated that in order for protection under article 25 to be attracted it is not necessary that a belief appeals to the sentiment of the people but that such belief should be genuine and conscientious and be held as a part of the practice or profession of the religion. If it is as such then subject to the restrictions under article 25 the protection mentioned therein will be attracted. Further with regards to article 19 the court has said that this article also covers the act of maintaining silence as an act of speech and expression. Thus, remaining silent while the national anthem is being sung is covered by it. Further, the court went on to explain that a mere administrative order of the state like that given to the students cannot restrict the right under article 19 such as the right to remain silent. For such right to be restricted an enacted law is necessary. Therefore, the court held that the punishment given to these students will be in contravention to the right bestowed upon them by virtue of article 19 and 25.
Thus, the court only gave effect to the right to remain silent while the national anthem is being sung when there is a well-founded, genuine, and conscientious belief of a religion that restricts them from doing so. Such belief should also be free of any perversity of mind. In absence of such a belief no person can ask for such protection. This decision caused an uproar in the society leading to the apprehension amongst people that any religious group can use such an excuse to exempt themselves from singing the national anthem in which case the stature of the national anthem could be reduced to nothingness. The voice of the people manifested as a writ petition filed by the government. The petition was dismissed on technical grounds putting an end to the controversy.
Author’s Name: Mohammad Hindal Ahmad (Bennett University, Greater Noida)
[1] The Constitution of India 1950, art. 19(1)(a)
[2] The Constitution of India 1950, art. 25
[3] Bijoe Emmanuel vs State of Kerala [1986] 3 SCC 615
[4] Bijoe Emmanuel vs State of Kerala [1986] Ker 32
[5] The Constitution of India 1950, art. 51(a)
