सुप्रीम कोर्ट का 1986 का निर्णय फिर सामने: ‘वंदे मातरम्’ सुनाने में धार्मिक स्वतंत्रता की रक्षा

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During September 22 hearing, a bench comprising CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana referred to Bijoe Emmanuel and indicated that the legal principle laid down in the 1986 judgment continues to apply.

The Supreme Court’s 1986 judgment in Bijoe Emmanuel v State of Kerala has resurfaced in a case concerning the singing of Vande Mataram, nearly four decades after it protected three schoolchildren who refused to sing the National Anthem because of their religious beliefs.

The judgment is now relevant to a challenge by Carnatic vocalist TM Krishna against the 2026 amendment to the Prevention of Insults to National Honour Act, 1971, and Ministry of Home Affairs directions requiring the complete six-stanza version of Vande Mataram to be sung at specified official, ceremonial and cultural occasions.

During Tuesday’s (September 22) hearing, a bench comprising Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice V Mohana referred to Bijoe Emmanuel and indicated that the legal principle laid down in the 1986 judgment continues to apply.

Justice Bagchi said the Court expected the law declared in that case to govern the amended statute and that a conscientious objector should not face criminal consequences for refusing to sing one or all stanzas for religious reasons.

But what exactly did Bijoe Emmanuel hold?

Three children who stood but did not sing

The case involved three children -- Bijoe, Binu Mol and Bindu Emmanuel -- who belonged to the Jehovah’s Witnesses faith.

They attended school and participated in the morning assembly. When 'Jana Gana Mana' was sung, they stood respectfully but did not sing.

The Supreme Court recorded their position at the outset of its judgment: “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.”

The judgment noted that their objection was not to the words or sentiments of the National Anthem. Rather, they believed that their religion did not permit them to participate in the act of singing it.

The Court observed that they had followed this practice for several years without objection. That changed in July 1985 after a Member of the Legislative Assembly (MLA) raised the issue.

An inquiry followed. According to the judgment, the Commission found the children to be “law-abiding” and reported that they showed no disrespect to the National Anthem.

Despite this, the headmistress expelled them from school on July 26, 1985, acting on the instructions of the Deputy Inspector of Schools.

Their father subsequently approached the education authorities, but the children were not allowed to return. A writ petition before the Kerala High Court was dismissed first by a single judge and then by a Division Bench.

The children approached the Supreme Court.

The Supreme Court’s central finding

A two-judge bench of Justices O Chinnappa Reddy and MM Dutt delivered the judgment on August 11, 1986.

The Court allowed the appeal and held that the children's fundamental rights under Articles 19(1)(a) and 25(1) had been violated.

The key distinction was between respecting the National Anthem and actually singing it.

The Court said: “There is no provision 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 then explained the significance of Article 51A(a), which requires every citizen to respect the Constitution, 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 said.

The Court therefore rejected the argument that failing to sing necessarily amounted to disrespect.

"It will not be right to say that disrespect is shown by not joining in the singing," it added.

The judgment also examined the Prevention of Insults to National Honour Act, 1971. Section 3 then provided punishment for intentionally preventing the singing of the National Anthem or causing disturbance to an assembly engaged in such singing.

The Court held that the children's conduct did not fall within that provision:

“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," the Court said.

The role of freedom of expression

Article 19(1)(a), which guarantees freedom of speech and expression, was one of the constitutional provisions on which the children relied.

The Supreme Court examined the instructions issued by the Kerala education authorities requiring participation in school assemblies and the singing of the National Anthem.

The Court found that the relevant circulars were departmental instructions rather than statutory provisions.

It held that such instructions could not be used to curtail a fundamental right protected by Article 19(1)(a).

The judgment stated: “The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions.”

It added that they could not form the basis for action denying citizens their fundamental rights.

The Court further held that if those circulars were interpreted as compelling every pupil to sing despite a genuine religious objection, such compulsion would violate Articles 19(1)(a) and 25(1).

What did Article 25 protect?

The second constitutional provision at the heart of the case was Article 25(1), which guarantees freedom of conscience and the right freely to profess, practise and propagate religion, subject to constitutional limitations.

The Supreme Court emphasised that the protection of conscience could not depend upon whether a judge personally agreed with a particular religious belief.

It stated: “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.”

The Court added: “Our personal views and reactions are irrelevant.”

It found that the children's beliefs were genuinely and conscientiously held. Their conduct was not, in the Court's assessment, an attempt to make a political or unpatriotic statement.

The judgment observed: “They do not hold their beliefs idly and their conduct is not the outcome of any perversity.”

The Court therefore held that the expulsion of the children violated their freedom of conscience and their freedom to profess, practise and propagate religion.

Was the Court saying everyone can refuse to sing?

The judgment was based on the specific circumstances before the Court.

The children had a genuine religious objection to singing. At the same time, they stood respectfully when the National Anthem was played. The Court specifically noted that it did not have to consider the position of people who refused even to stand.

The judgment said: “We do not have to consider that situation in the present case since it is the case of the appellants and it is not disputed that they have always stood up and they will always stand up respectfully when the National Anthem is sung.”

This is important in understanding why Bijoe Emmanuel has been cited in the present Vande Mataram proceedings.

The 1986 judgment was not a general ruling that citizens could disregard national symbols. Instead, it considered whether the State could penalise or expel individuals who had a genuine religious objection to singing while continuing to show respect.

Why has Bijoe Emmanuel come up in the Vande Mataram case?

Krishna's petition concerns Section 3 of the 1971 Act as amended in 2026.

The amended provision, according to the petition and the material placed before the Court, provides for imprisonment of up to three years, fine, or both where a person intentionally prevents the singing of the National Anthem or National Song or causes disturbance to an assembly engaged in such singing.

The petition also challenges Ministry of Home Affairs (MHA) directions dated January 28 and July 9, 2026, which prescribe the complete six-stanza version of Vande Mataram for specified government, ceremonial and cultural occasions.

Krishna argues that the combination of the directions and the amended criminal provision effectively compels participation in singing all six stanzas. The petition specifically relies on Bijoe Emmanuel and argues that freedom of conscience under Article 25(1) protects a genuine conscientious objection.

According to the petition, the last four stanzas contain references to Hindu deities including Durga, Lakshmi and Saraswati.

The petition also raises challenges under Articles 14, 15(1), 19(1)(a), 21 and 25(1), and argues that the expression “disturbance” in the amended penal provision is vague and potentially capable of being used against scholarly criticism, artistic expression and teaching concerning Vande Mataram.

What did the bench say on Tuesday?

Justice Bagchi referred directly to the continuing status of Bijoe Emmanuel.

“We would expect that the law of the land, as declared by this Court in Bijoe Emmanuel, will govern the Act. The declaration of law in Bijoe Emmanuel has till now not been questioned,” he said, according to reports of the hearing.

He further indicated that a conscientious objector should not face criminal consequences for choosing not to sing one or all stanzas on grounds protected by Articles 25 and 26.

At the same time, the bench distinguished the question of constitutional protection for conscience from the question of what constitutes the National Song.

Justice Bagchi said that deciding what the National Song is was for the democratic State, including whether it comprises two or more stanzas, rather than for the Court to determine based on its own assessment of national sentiment.

That explains the significance of the 1986 precedent in Tuesday's hearing: the Court referred to an existing constitutional principle concerning conscientious objection without, at this stage, deciding the separate dispute over the composition or status of Vande Mataram.

What was the final outcome in Bijoe Emmanuel?

The Supreme Court set aside the Kerala High Court judgments and directed the authorities to readmit the three children to school.

It directed that they be permitted to continue their studies without hindrance and that the authorities provide the facilities necessary for their education.

The Court concluded its judgment with a broader observation on constitutional tolerance: “Our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.”

The Supreme Court has asked the Union government to respond to Krishna's petition within two weeks. The constitutional questions raised by the petition therefore remain before the Court; Bijoe Emmanuel is the earlier precedent the bench has invoked in considering the question of conscientious objection and criminal consequences.

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