The 1986 Kerala school case that holds parallels to hijab row

Bijoe Emmanuel, the man who occupies a unique place in the history of Independent India’s secular discourse, prefers to keep away from the limelight. He prefers not to make any comment on the ban on the hijab in educational institutions in Karnataka.

When contacted by The Federal, Bijoe seemed reluctant to talk. “Recently, I talked to some journalists and my words were misinterpreted,” he explained. In this era of jingoistic nationalism, he prefers to keep quiet.

Bijoe does not want his struggles to be brought back to public memory — he had fought and won an epic legal battle against the mandatory singing of the national anthem in school.  At the age of 15, he and his younger sisters Binumol and Bindu, in classes 9 and 5, respectively, were expelled from school for not singing Jana Gana Mana. They hailed 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 are expected to stand up as a gesture of respect, there is no compulsion that all the students should sing along, is his reasoning. “I studied in the same school since the first standard; we all used to stand up in respect, but we were never asked to sing along,” Bijoe told The Federal.

The song not sung

What changed all of a sudden is elaborately described in the Supreme Court order pronounced in August 1986, by Justice Chinnappa Reddy. “Some patriotic gentlemen who visited the school noticed that Bijoe and his siblings were not singing the national anthem.  They did not sing not because they had any objection to the words or thoughts embodied in the national anthem, but plainly because it is against the tenets of their religious faith,” said the order.

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Among those who visited the school that day was an MLA. The issue was raised in the Kerala Assembly and a commission was appointed to enquire into the matter and submit a report.  The commission’s report was in favour of the children. They were law-abiding, and showed no disrespect to the national anthem, it said.

Irrespective of the findings of the report, the headmistress expelled the children from the school on July 26, 1985, under the instructions of the Deputy Inspector of Schools. This expulsion was done based on two circulars issued by the Director of Public Administration, in 1969 and 1975, which enforced the singing of the national anthem.

Thus began the legal battle of VJ Emmanuel, the father of Bijoe, Binu and Bindu, who was a professor of English at KE College, Mannanam, in Kottayam district. He filed a writ petition in the High Court of Kerala seeking an order to readmit the children to the 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. Prof Emmanuel then approached the Supreme Court that lead to the epic judgment that is often referred to as the golden rule of secularism by jurists.

Getting the question right

The Supreme Court observed that the High Court got it all wrong by finding that the national anthem did not hurt anyone’s religious sentiment. “That is not the question at all,” said Justice Reddy. “The objection of the petitioner is not to the language or the sentiments of the national anthem; they do not sing the national anthem whatever — Jana Gana Mana in India, God Save the Queen in Britain, Star Spangled Banner in the US, and so on.

“The students, who are (members of) Jehovah’s Witnesses, do not sing the anthem, though they stand up on such occasions to show 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 join any rituals except prayers to Jehovah, their God.”

The judgment elaborately quoted from similar judgments by British, American and Australian courts. The court observed that people belonging to this particular Christian sect fought similar legal battles in many other countries as well. Towards the conclusion, the judge raised the cardinal question: “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?”

What the Constitution enshrines

The Supreme Court found that infringing on fundamental rights with no statutory authority was illegal and unconstitutional. There was no law in India which made the singing of the national anthem compulsory, it 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 — could not be snatched away by any authority, government or institution until it was authorised by a statute, it added. A mere executive order or a departmental instruction was not sufficient to restrain a person from enjoying his fundamental rights, it noted.

The observation made on majoritarian 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 sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of a religion. Personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held, it attracts the protection of Article 25,” said the Supreme Court.

On the need for tolerance

Professor Emmanuel passed away last year. Bijoe works full time in association with the Church, advancing faith. Yet, he has his reservations on talking about the hijab row, which is also perceived as an infringement of the right to religious faith.

However, the concluding remarks of Justice Reddy in the Emmanuel siblings case, made more than three decades ago, embody the constitutional spirit of the meaning of secularism, and apply perfectly to the current controversy. “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it,” said the judge.