People stand as Jana Gana Mana is played at a theatre in Goregaon, Mumbai, on Republic Day in 2003. (Express Photo: Vasant Prabhu) People stand as Jana Gana Mana is played at a theatre in Goregaon, Mumbai, on Republic Day in 2003. (Express Photo: Vasant Prabhu)

On Monday, the Supreme Court said all cinema halls across the country should play the national anthem and that those present “must stand up in respect” to “instill a feeling within one a sense of committed patriotism and nationalism”. The order has touched off an old debate on whether forcing someone to sing the anthem infringes on certain fundamental rights. In August 1986, a Supreme Court bench of Justices O Chinnappa Reddy and M M Dutt had, in Bijoe Emmanuel & Ors vs State Of Kerala & Ors, granted protection to three children of the Jehovah’s Witness sect, who didn’t join in the singing of the national anthem at their school. The court held that forcing the children to sing the anthem violated their fundamental right to religion. Excerpts from the judgment, authored by Justice Reddy:

WATCH VIDEO: Supreme Court Makes Playing National Anthem At Theaters Mandatory

On the children and prayer

“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… The children were left in peace and to their beliefs. That was until July 1985, when some patriotic gentleman took notice. The gentleman, (an MLA), thought it was unpatriotic of the children not to sing the National Anthem… So, he put a question in the Assembly. A Commission was appointed… The Commission reported that the children are ‘law- abiding’ and that they showed no disrespect to the National Anthem… (But) under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the children from the school from July 26, 1985… 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…”

On the High Court ruling

“We are afraid the High court misdirected itself… They considered, in minute detail, each and every word… of the National Anthem and concluded that there was no word or thought… which could offend anyone’s religious susceptibilities. But 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 Banner in the United States and so on…”

On Articles 19(1)(a) and 25(1)

“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.” [Article 19(1)(a) guarantees freedom of speech and expression, and Article 25(1) upholds the right to practise and propagate one’s religion]

“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 institutions, 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…

“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…”

On Article 25 of Constitution

“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. This has to be borne in mind in interpreting Art. 25.”

On West Virginia State Board of Education v. Barnette verdict

[In 1943, the US Supreme Court delivered a 6-3 opinion, holding that the Free Speech Clause of the First Amendment to the US Constitution protected students from being forced to salute the American flag. Justice Chinnappa quoted from the verdict, which was delivered by Justice Robert H Jackson]

“Government of limited power need not be anaemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support… 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. If there are any circumstances which permit an exception, they do not now occur to us.”

On the question of tolerance

“We are satisfied, in the present case, that 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 morning assembly though they do stand up respectfully when the Anthem is sung, is a violation of their Fundamental Right to freedom of conscience and freely to profess, practise and propagate religion…

“We, therefore, find that the Fundamental Rights of the appellants under Art. 19(1)(a) and 25(1) have been infringed and they are entitled to be protected. We allow the appeal, set aside the judgment of the High Court and direct the respondent authorities to re-admit the children into the school… We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practises tolerance; let us not dilute it.”

📣 The Indian Express is now on Telegram. Click here to join our channel (@indianexpress) and stay updated with the latest headlines

For all the latest Explained News, download Indian Express App.