The 1986 Kerala school case which has parallels to the hijab row

Bijoe Emmanuel, the man who occupies a unique place in the history of secular discourse in independent India, prefers to stay away from the spotlight. He prefers not to comment on the hijab ban in educational institutions in Karnataka.

When contacted by The Federal, Bijoe seemed reluctant to speak. “Recently, I spoke to journalists and my words were misinterpreted,” he explained. In this era of chauvinistic nationalism, he prefers to remain silent.

Bijoe doesn’t want his struggles to go down in public memory – he had fought and won an epic legal battle over the compulsory singing of the national anthem at school. At the age of 15, he and his younger sisters Binumol and Bindu, in grades 9 and 5 respectively, were expelled from school for not singing Jana Gana Mana. They were from a family belonging to the Christian sect of Jehovah’s Witnesses, and singing the national anthem went against their religious faith.

While all schools follow the practice of singing the national anthem and students must stand as a sign of respect, there is no requirement that all students sing, according to his reasoning. “I studied in the same school since the first standard; we all used to stand up out of respect, but we were never asked to sing with us,” Bijoe said. The Federal.

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The unsung song

What suddenly changed is detailed in the August 1986 Supreme Court order by Justice Chinnappa Reddy. “Some Patriot gentlemen who visited the school noticed that Bijoe and her siblings were not singing the national anthem. They did not sing not because they had any objections to the words or thoughts contained in the national anthem, but simply because it goes against the tenets of their religious faith,” the order said. .

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Among those who visited the school that day was a deputy. The matter was raised in the Kerala Assembly and a commission was appointed to investigate the matter and submit a report. The commission’s report was in favor of the children. They were law-abiding and did not disrespect the national anthem, he added.

Regardless of the report’s findings, the headmistress expelled the children from the school on July 26, 1985, under the instructions of the assistant inspector of schools. This expulsion was made on the basis of two circulars issued by the director of public administration, in 1969 and 1975, which imposed the singing of the national anthem.

Thus began the legal battle of VJ Emmanuel, the father of Bijoe, Binu and Bindu, who was an English teacher at KE College, Mannanam in Kottayam district. He filed a writ petition in the Kerala High Court seeking an order for the children’s readmission to school. The Single Bench, and later the Division Bench, of the High Court dismissed his petition, finding no word or thought in the national anthem that could hurt anyone’s religious sentiment. Professor Emmanuel then approached the Supreme Court which led to the epic judgment often referred to as the golden rule of secularism by jurists.

Ask the question well

The Supreme Court observed that the High Court had erred in concluding that the national anthem did not hurt anyone’s religious sentiment. “That’s not the point at all,” Judge Reddy said. “The petitioner’s objection is not to the language or sentiments of the national anthem; they don’t sing the national anthem at all — Jana Gana Mana in India, God Save the Queen in Great Britain, Star-Spangled Banner in the United States, etc.

“Students, who are (members of) Jehovah’s Witnesses, do not sing the national anthem, although they stand on such occasions to show their respect to the national anthem. They abstain from actual chanting only because they sincerely believe and are convinced that their religion does not allow them to participate in any ritual except prayers to Jehovah their God. ”

The judgment cited in detail similar judgments from UK, US and Australian courts. The court observed that people belonging to this particular Christian sect were also fighting similar legal battles in many other countries. Towards the conclusion, the judge raised the cardinal question: “It is obvious that Jehovah’s Witnesses everywhere have religious beliefs which may seem strange or even bizarre to us, but the sincerity of their beliefs does not matter doubt. Do they have the right to be protected by the Constitution?

What the Constitution enshrines

The Supreme Court found that the violation of fundamental rights without legal authorization was illegal and unconstitutional. There was no law in India that made singing the national anthem compulsory, he said.

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The fundamental rights enshrined in the Constitution – in this case the right to freedom of religion and the right to freedom of speech and expression – cannot be taken away by any authority, government or institution until this is authorized by law, he added. A simple decree or departmental instruction is not enough to prevent a person from enjoying their basic rights, he noted.

The observation made on the majority reasoning is also an important aspect of the judgment. “The question is not whether a particular religious belief or practice appeals to our reason or feeling, but whether the belief is truly and conscientiously held within the profession or practice of a religion. . Personal opinions and reactions are irrelevant. If the belief is genuinely and conscientiously held, it enjoys the protection of section 25,” the Supreme Court said.

On the need for tolerance

Professor Emmanuel passed away last year. Bijoe works full time in association with the Church, advancing the faith. However, he has reservations about the evocation of the dispute over the hijab, which is also seen as an attack on the right to religious faith.

However, Justice Reddy’s closing remarks in the Emmanuel siblings case, made more than three decades ago, embody the constitutional spirit of a sense of secularism and apply perfectly to the current controversy. “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let’s not water it down,” the judge said.