ION Civil Appeal No 870 of 1986 From the Judgment and order dated 7121985 of the Kerala High Court in WA 
No 483 of 1985
FS Nariman TS Krishnamurthy Iyer KJ John and M Jha for the Appellants
G Viswanatha Iyer and Mrs Baby Krishnan for Respondent Nos
I to 3
522 PS Poti EMS Anam and James Vincent for the Respondents
The Judgment of the Court was delivered by CHINNAPPA REDDY J
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
This they and before them their elder sisters who attended the same school earlier have done all these several years
No one bothered No one worried
No one thought it disrespectful or unpatriotic
The children were left in peace and to their beliefs
That was until July 1985 when some patriotic gentleman took notice
The gentleman thought it was unpatriotic of the children not to sing the National Anthem
He happened to be a Member of the Legislative Assembly
So he put a question in the Assembly
A Commission was appointed to enquire and report
We do not have the report of the Commission
We are told that the Commission reported that the children are law abiding  and that they showed no disrespect to the National Anthem
Indeed it is nobody s case
that the children are other than well behaved or that they have ever behaved disrespectfully when the National Anthem was sung
They have always stood up in respectful silence
But these matters of conscience which though better left alone are sensitive and emotionally evocative
So under the instructions of Deputy Inspector of Schools the Head Mistress expelled the children from the school from July 26 1985
The father of the children made representations requesting that his children may be permitted to attend the school pending orders from the Government
The Head Mistress expressed her helplessness in the matter
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
They have now come before us by special leave under article 136 of the Constitution
We are afraid the High court misdirected itself and went off at a tengent
They considered in minute detail each and every word and thought of the National Anthem and concluded that there was no word 523 or thought in the National Anthem 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 banna in the United States and so on
In their words in the Writ Petition they say The students who are 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 it be in their prayers to Jehovah their God  That the petitioners truly and conscientiously believe what they say is not in doubt
They do not hold their beliefs idly and their conduct is not the outcome of any perversity
The petitioners have not asserted these beliefs for the first time or out of any unpatriotic sentiment
Jehovah s Witnesses as they call themselves appear to have always expressed and stood up for such beliefs all the world over as we shall presently show
Jehovah s Witnesses and their peculiar beliefs though little noticed in this country have been noticed we find in the Encyclopaedia Britannica and have been the subject of judicial pronouncements elsewhere
In The New Encyclopaedia Britannica  Macropaedia Vol
10 page 538 after mentioning that Jehovah s Witnesses are the adherents of the apocalyptic sect organized by Charles Taze Russell in the early 1870 it is further mentioned 
They believe that the Watch Tower Bible and Tract Society their legal agency and publishing arm exemplifies the will of God and proclaims the truths of the Bible against the evil triumvirate of organized religion the business world and the state 
The Witnesses also stand apart from civil society refusing to vote run for public office serve in any armed forces salute the flag stand for the National Anthem or recite the pledge of allegiance
Their religious stands have brought clashes with various governments resulting in law suits mob violence imprisonment torture and death
At one time more than 6000 Witnesses were inmates of Nazi concentration camps Communist and Fascist States usually forbid Watch Tower activities
In the US the society has taken 45 cases to the Supreme Court and has won significant victories for freedom of religion and speech
The Witnesses have been less successful in claiming exemptions as ministers from military service 524 and in seeking to withhold blood transfusions from their children
 Some of the beliefs held by Jehovah s Witnesses are mentioned in a little detail in the statement of case in Adelaide Company of Jehovah s Witnesses vs The Commonwealth  a case decided by the Australian High Court
It is stated Jehovah s Witnesses are an association of persons loosely organised throughout Australia and elsewhere who regard the literal interpretation of the Bible as Fundamental to proper religious beliefs Jehovah s Witnesses believe that God Jehovah is the Supreme ruler of the universe
Satan or Lucifer was originally part of God s organization and the perfect man was placed under him
He rebelled against God and set up his own organization in challenge to God and through that organization had ruled the world
He rules and controls the world through material agencies such as organized political religious and financial bodies
Christ they believe came to earth to redeem all men who would devote them selves entirely to serving God s will and purpose and He will come to earth again His second coming has already begun and will over throw all the powers of evil These beliefs lead Jehovah s Witnesses to proclaim and teach publicly both orally and by means of printed books and pamphlets that the British Empire and also other organized political bodies are organs of Satan unrighteously governed and identifiable with the Beast in the thirteenth chapter of the Book of Revelation
Also that Jehovah s Witnesses are Christians entirely devoted to the Kingdom of God which is The Theocracy that they have no part in the political affairs of the world and must not interfere in the least manner with war between nations
They must be entirely neutral and not interfere with the drafting of men of nations they go to war
And also that wherever there is a conflict between the laws of Almighty God and the Laws of man the Christian must always obey God s law in preference to man s law
All laws of men however in harmony with God s law the Christian obeys
God s law is expounded and taught by Jehovah s Witnes 525 ses
Accordingly they refuse to take an oath of allegiance to the King or other constituted human authority
 The case of Adelaide Company of Jehovah s Witnesses vs The Commonwealth supra arose out of an action to restrain the Commonwealth of Australia from enforcing the National Security Subversive Associations Regulations to the Jehovah s Witnesses
Minersville School District vs Gobitis 84 Law
US 1375 and West Virginia State Board of Education vs Barnette  are two cases decided by the American Supreme Court in which Jehovah s witnesses claimed that they could not be compelled to salute the flag of the United States while reciting pledge of allegiance
In the latter case Jackson J referred to the particular belief of the Witnesses which was the subject matter of that case as follows The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government
Their religious beliefs include a literal version of Exodus Chapter XX verses 4 and 5 which says Thou shall not make upto the any graven image or any likeness of anything that is in heaven above or that is in the earth beneath or that is in the water under the earth thou shalt not bow down thyself to them nor serve them
 They consider that the flag is an image within this command
For this reason they refuse to salute Donald vs The Board of Education for the City Hamilton 1945 Ontario Reports 518 is a case decided by the Court of Appeals of Ontario where the objection by Jehovah s Witnesses was to saluting the flag and singing National Anthem
The Court referred to the following belief of the Jehovah s Witnesses The appellants father and sons are affiliated with Jehovah s Witnesses and believe that saluting the flag and joining in the singing of the national anthem are both contrary to and forbidden by command of Scripture the former because they consider the flag an image within the literal meaning of Exodus Chapter XX verses 4 and 5 and the latter because while they respect the King and the State the prayer voiced in this anthem is not compatible 526 with the belief and hope which they hold in the early coming of the new world in the government of which present temporal states can have no part Sheldon vs Fannin 221 Federal Supp
766 a case decided by the United States District Court of Arizona also arose out of the refusal of Jehovah s Witnesses to stand when the National Anthem was sung
The Court observed This refusal to participate even to the extent of standing without singing is said to have been dictated by their religious beliefs as Jehovah s Witnesses requiring their literal acceptance of the Bible as they Word of Almighty God Jehovah
Both precedent and authority for their refusal to stand is claimed to be found in the refusal of three Hebrew children Shadrach Meshach and Abednege to bow down at the sound of musical instruments playing patriotic religious music throughout the land at the order of King Nebuchadnezzar of ancient Babylon Daniel 3 1328 For a similar reason members of the Jehovah s Witnesses sect refuse to recite this Pledge of Allegiance to the Flag of the United States viewing this patriotic ceremony to be the worship of a graven image
Exodus 20 4 5
However by some process of reasoning we need not tarry to explore they are willing to stand during the Pledge of Allegiance out of respect for the Flag as a symbol of the religious freedom they enjoy See Board of Education vs Barnette  1943
 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 Article 191a of the Constitution guarantees to all citizens freedom of speech and expression but Article 192 provides that nothing in article 191a shall prevent a State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India the security of the State friendly relations with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence
article 251 guarantees to all persons freedom of conscience and the 527 right freely to profess practise and propogate religion subject to order morality and health and to the other provisions of Part III of the Constitution
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 articles 191a and 25 of the Constitution
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 article 51 Aa 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
Parliament has not been unmindful of National Honour 
The Prevention of Insults to National Honour Act was enacted in 1971
While section 2 deals with insult to the Indian National Flag and the Constitution of India section 3 deals with the National Anthem and enacts Whoever intentionally prevents the singing of the National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which extend to three years or with find or with both 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 section 3 of the Prevention of Insults to National Honour Act
The Kerala Education Act contains no provision of relevance
Section 36 however enables the Government to make rules for the purpose of carrying into effect the provisions of the Act and in particular to provide for standards of education and courses of study
The Kerala Education Rules have been made pursuant to the powers conferred by the Act
Chapter VIII of the Rules provides for the organisation of instruction and progress of pupils
Rule 8 of Chapter VIII 528 provides for moral instruction and expressly says Moral instruction should form a definite programme in every school but it should in no way wound the social or religious susceptibilities of the peoples generally
 The rule goes on to say that the components of a high character  should be impressed upon the pupils
One of the components is stated to be love of one s country 
Chapter IX deals with discipline
Rule 6 of Chapter IX provides for the censure suspension or dismissal of a pupil found guility of deliberate in subordination mischief fraud mal practice in examinations conduct likely to cause unwholesome influence on other pupils etc
It is not suggested that the present appellants have ever been found guility of misconduct such as that described in Chapter IX Rule 6
On the other hand the report of the Commission we are told is to the effect that the children have always been well behaved law abiding and respectful
The Kerala Education Authorities rely upon two circulars of September 1961 and February 1970 issued by the Director of Public Instruction Kerala
The first of these circulars is said to be a Code of Conduct for Teachers and pupils and stresses the importance of moral and spiritual values
Several generalisations have been made and under the head patriotism it is mentioned Patriotism 1
Environment should be created in the school to develop the right kind of patriotisms in the children
Neither religion nor party nor anything of this kind should stand against one s love of the country
For national integration the basis must be the school
National Anthem
As a rule the whole school should participate in the singing of the National Anthem
 In the second circular also instructions of a general nature are given and para 2 of the circular with which we are concerned is as follows It is compulsory that all schools shall have the morning Assembly every day before actual instruction begins
The whole school with all the pupils and teachers shall be gathered for the Assembly
After the singing of the National Anthem the whole school shall in one voice take 529 the National Pledge before marching back to the classes
 Apart from the fact that the circulars have no legal sanction behind them in the sense that they are not issued under the authority of any statute we also notice that the circulars do not oblige each and every pupil to join in the singing even if he has any conscientious objection based on his religious faith nor is any penalty attached to not joining the singing
On the other hand one of the circulars the first one very rightly emphasise the importance of religious tolerance
It is said there All religions should be equally respected
 If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine conscientious religious objection then such compulsion would clearly contavene the rights guaranteed by article 191a and article 251
We have referred to article 191a which guarantees to all citizens freedom of speech and expression and to article 192 which provides that nothing in article 191a shall prevent a State from making any law in so far as such law impose reasonable restrictions on the exercise of the right conferred by article 191a in the interests of the sovereignty and integrity of India the security of the State friendly relations with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence
The law is now well settled that any law which may be made under clauses 2 to 6 of article 19 to regulate the exercise of the right to the freedoms guaranteed by article 191a to e and g must be a law  having statutory force and not a mere executive or departmental instruction
In Kharak Singh vs State of UP  the question arose whether a police regulation which was a mere departmental instruction having no statutory basis could be said to be a law for the purpose of article 192 to 6
The Constitution Bench answered the question in the negative and said Though learned Counsel for the respondent started by attempting such a justification by invoking section 12 of the Indian Police Act he gave this up and conceded that the regulations contained in Ch
XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers
They would not therefore be a law which the State is entitled 530 to make under the relevant cls
2 to 6 of article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub clauses of article 191 not would the same be a procedure established by law within article 21
The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks to restrain the State from taking action under the regulations
 The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions
They cannot therefore form the foundation of any action aimed at denying to citizen s Fundamental Right under article 191a
Further it is not possible to hold that the two circulars were issued in the interest of the sovereignty and integrity of India the security of the State friendly relation with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence  and if not so issued they cannot again be invoked to deny a citizen s Fundamental Right under article 191a
In Kameshwar Prasad vs The State of Bihar 1962 SUPP
SCR 369 a Constitution Bench of the court had to consider the validity of Rule 4A of the Bihar Government Servants  Conduct Rules which prohibited any form of demonstration even if such demonstration was innocent and incapable of causing a breach of public tranquility
The court said No doubt if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in article 192 the validity of the rule could have been sustained
The vice of the rule in our opinion consists in this that it lays a ban on every type of demonstration be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result
 Examining the action of the Education Authorities in the light of Kharak Singh vs State of Uttar Pradesh supra and Kameshwar Pradesh vs State of Bihar supra we have no option but to hold that the expulsion of the children from the school not joining the singing of 531 the National Anthem though they respectfully stood up in silence when the Anthem was sung was violative of article s191a
Turning next to the Fundamental Right guaranteed by article 25 we may usefully set out here that article to the extent relevant 251 Subject to public order morality and health and to the other provisions of this Part all persons are equally entitled to freedom of conscience and the right freely to profess practise and propagate religion
2 Nothing in this article shall affect the operation of any existing law or prevent the State from making any law a regulating or restricting any economic financial political or other secular activity which may be associated with religious practice b providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanations I and II not extracted as unnecessary 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 article 25
We see that the right to freedom of conscience and freely to profess practise and propagate religion guaranteed by article 25 is subject to 1 public order morality and health 2 other provisions of Part III of the Constitution 3 any law a regulating or restricting any economic financial political or other secular activity which may be associated with religious practice or b providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus
Thus while on the one hand article 251 itself expressly subjects the right guaranteed by it to public order morality and health and to the other provisions of Part III on the other hand the State is also given the liberty to make a law to regulate or restrict any economic financial political or other secular activity which may be associated with religious practise and to provide for social welfare and reform even if such regulation restriction or provision affects the right guaranteed by article 251
Therefore 532 whenever the Fundamental Right to freedom of conscience and to profess practise and propagate religion is invoked the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order morality and health whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic financial political or secular activity which may be associated with religious practice or to provide for social welfare and reform
It is the duty and function of the Court so to do
Here again as mentioned in connection with article 192 to 6 it must be a law having the force of a statute and not a mere executive or a departmental instruction
We may refer here to the observations of Latham CJ
in Adelaide Company of Jehovah s Witnesses vs The Commonwealth supra a decision of the Australian High Court quoted by Mukherje J in the Shrirur Mutt case
Latham CJ
had said The Constitution protects religion within a community organized under a Constitution so that the continuance of such protection necessarily assumes the continuance of the community so organized
This view makes it possible to reconcile religious freedom with ordered government
It does not mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace order and good government of Australia precludes any consideration by a court of the question whether or not such a law infringes religious freedom
The final determination of that question by Parliament would remove all reality from the Constitutional guarantee
That guarantee is intended to limit the sphere of action of the legislature
The interpretation and application of the guarantee cannot under our Constitution be left to Parliament If the guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringes it and by declining to enforce them
The courts will therefore have the responsibility of determining whether a particular law can fairly be regarded as a law to protect the existence of the community or whether on the other hand it is a law for prohibiting the free exercise of any religion
 The word for shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character
 533 What Latham CJ
has said about the responsibility of the court accords with what we have said about the function of the court when a claim to the Fundamental Right guaranteed by article 25 is put forward
The meaning of the expression Religion  in the context of the Fundamental Right to freedom of conscience and the right to profess practice and propagate religion guaranteed by article 25 of the Constitution has been explained in the well known cases of The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt  Rati Lal Panachand Gandhi vs The State of Bombay  Ors 1954 SCR 1055 and section P Mittal Etc
vs Union of India  Ors  It is not necessary for our present purpose to refer to the exposition contained in these judgments except to say that in the first of these cases Mukherjea J made a reference to Jehova s Witnesses and appeared to quote with approval the views of Latham CJ of the Australian High Court in Adelaide Company vs The Commonwealth supra and those of the American Supreme Court in West Virginia State Board of Education vs Barnettee supra
In Ratilal s case we also notice that Mukherjea J quoted as appropriate Davar J s following observations In Jarnshedji vs Soonabai 23 Bomaby ILR 122 If this is the belief of the Community and it is proved undoubtedly to be the belief of the Zoroastrian community a secular Judge is bound to accept that belief it is not for him to sit in judgement on that belief he has no right to interfere with the conscience of a doner who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind
 We do endorse the view suggested by Davar J s observation that 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
Our personal views and reactions are irrelevant
If the belief is genuinely and conscientiously held it attracts the protection of article 25 but subject of course to the inhibitions contained therein
In Minersville School Dist
vs Gobitis supra the question arose whether the requirement of participation by pupils and public schools in the ceremony of saluting the national flag did not infringe the liberty guaranteed by the 14th amendment in the case of a pupil who re 534 fused to participate upon sincere religious grounds
Frankfurter J great exponent of the theory of judicial restrain that he was speaking for the majority of the United States Supreme Court upheld the requirement regarding participation in the ceremony of flag salutation primarily on the ground The wisdom of training children in patriotic impulses by those compulsions which necessarily prevade so much of the educational process is not for our independent judgment  
For ourselves we might be tempted to say that the deepest patriotism is best engendered by giving unfettered scope to the most crochety beliefs
But the courtroom is not the arena for debating issues of educational policy
It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy while respecting at the same time individual idiosyncracics among a people so diversified in racial origins and religious allegiances so to hold would in effect make us the school board for the country
That authority has not been giving to this Court
not should we assume it
 Frankfurter J s view it is seen was founded entirely upon his conception of judicial restraint
In that very case Justice Stone dissented and said It the Government may suppress religious practices dangerous to morals and presumably those also which are inimical to public safety health and good order
But it is a long step and one which I am unable to take to the position that Government may as a supposed educational measure and as a means of disciplining young compel affirmations which violate their religious conscience
 Stone J further observed The very essence of the liberty which they guaranteed is the freedom of the individual from compulsion as to what he shall think and what he shall say at least where the compulsion is to bear false witness to his religion 535 It was further added History teaches us that there have been but few infringements of personal liberty by the State which have not been justified as they are here in the name of righteousness and the public good and few which have not been directed as they are now had politically helpless manners
 We do not think that it is necessary to consider the case of Gobitis at greater length as the decision was overruled very shortly after it was pronounced by the same  court in West Virginia State Board of Education vs Barnette supra
Justices Black and Douglas who had agreed with Justice Frankfurter in the Gobitis s case retraced their steps and agreed with Justice Jackson who gave the opinion of the court in West Virginia State Board of Education vs Barnette supra
Justice Jackson in the course of his opinion observed It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind
It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barran of meaning
It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a dear and present danger of action of a kind the State is empowered to prevent and punish
It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence
But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression
To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind Justice Jackson referred to Lincoln s famour dilemma must a government of necessity be too strong for the liberties of its people or too weak to maintain its own existence  and added 536 It may be doubted whether Mr Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school
Such over simplification so handy in political debate often lacks the precision necessary to postulates of judicial reasoning
If validly applied to this problem the utterance cited would resolve every issue of power in favour of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies
Government of limited power need not be anemic 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
Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification
to enforce those rights today is not to choose weak government over strong government
It is only to adhre as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end
 Dealing with the argument that any interference with the authority of the school Board would in effect make the court the School Board for the country as suggested by Justice Frankfurter Justice Jackson said There are village tyrants as well as village Hampdens but none who acts under color of law is beyond reach of the Constitution 
We cannot because of modest estimates of our competence in such specialities as public education withhold the judgment that history authenticates as the function of this court when liberty is infringed Justice Jackson ended his opinion with the statement 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
537 We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control
 Sheldon vs Fannin supra was a case where the pupils refused even to stand when the National Anthem was sung
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
Donald vs Hamilton Board Education supra was again a case of objection by Jehovah s witnesses to flag salutation and singing the national anthem
Gillanders JA said There is no doubt that the teachers and the school board in the case now being considered in good faith prescribed the ceremony of the flag salute only with the thought of inculcating respect for the flag and the Empire or Commonwealth of Nations which events of recent years have given more abundant reason than ever before to love and respect
If I were permitted to be guided by my personal views I would find it difficult to understand how any well disposed person could offer objection to joining in such a salute on religious or other grounds
To me a command to join the flag salute or the singing of the national anthem would be a command not to join in any enforced religious exercise but viewed in proper perspective to join in an act of respect for a contrary principle that is to pay respect to a nation and country which stands for religious freedom and the principle that people may worship as they please or not at all But in considering whether or not such exercises may or should in this case be considered as having devotional or religious significance it would be misleading to proceed on any personal views on what such exercises might include or exclude After referring to Jackson J s opinion in West Virginia State Board of Education vs Barnette supra and some other cases it was further observed 538 For the Court to take to itself the right to say that the exercises here in question had no religious or devotional significance might well be for the Court to deny that very religious freedom which the statute is intended to provide  It is urged that the refusal of the infant appellants to join in the exercises in question is disturbing and constitutes conduct injurious to the moral tone of the school
It is not claimed that the appellants themselves engaged in any alleged religious ceremonies or observations but only that they refrained from joining in the exercises in question   
To do just that could not I think be viewed as conduct injurious to the moral tone of the school or class
 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 practice and propagate religion
Shri Vishwa Nath Iyer and Shri Potti who appeared for the respondents suggested that the appellants who belonged but to a religious denomination could not claim the Fundamental Right guaranteed by article 251 of the Constitution
They purpored to rely upon a sentence in the judgment of this court in Jagdishwaranand vs Police Commissioner Calcutta AIR 1984 SC 51
The question in that case was whether the Ananda Margis had a fundamental right within the meaning of article 25 or Art 26 to perform Tandava dance in public streets and public places
The Court found that Anand Marga was a Hindu religious denomination and not a separate religion
The court examined the question whether the Tandava dance was a religious rite or practise essential to the tenets of the Ananda Marga and found that it was not
On that finding the court concluded that the Ananda Marga had no fundamental right to perform Tandava dance in public streets and public places
In course of the discussion at one place there is found the following sentence Mr Tarkunde Counsel for the petitioner had claimed 539 protection of article 25 of the Constitution but in view of our finding that Ananda Marga was not a separate religion
application of article 25 is not attracted
 This sentence appears to have crept into the judgment by some slip
lt is not a sequitur to the reasoning of the court on any of the issues
In fact in the subsequent paragraphs the court has expressly proceeded to consider the claim of the Ananda Marga to perform Tandava dance in public streets pursuant to the right claimed by them under article 251
We therefore find that the Fundamental Rights of the appellants under article 191a and 251 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 to permit them to pursue their studies without hindrance and to facilitate the pursuit of their studies by giving them the necessary facilities
We only wish to add our tradition teaches tolerance our philosophy preaches tolerance our constitution practices tolerance let us not dilute it
The appellants are entitled to their costs
MLA Appeal allowed


Summary:
The appellants three children belong to a sect called Jehovah s Witnesses who worship only Jehovah the Creator and none other
They refused to sing the National Anthem Jana Gana Mana  because according to them it is against the tenets of their religious faith not the words or the thoughts of the National Anthem but the singing of it
They desisted from actual singing only because of their aforesaid honest belief and conviction but they used to stand up in respectful silence daily during the morning assembly when the National Anthem was sung
A Commission was appointed to enquire and report and it reported that the children were law abiding and that they showed no disrespect to the National Anthem
However under the instructions of Deputy Inspector of Schools the Head Mistress expelled the appellants from school from July 26 1985
A representation by the father of the children to the Education Authorities requesting that the children may be permitted to attend the 519 school pending orders from the Government having failed the appellants filed a Writ Petition in the High Court seeking an order restraining the authorities from preventing them from attending the school
A single Judge and then a Division Bench rejected the prayer of the appellants
Allowing the appeal by Special Leave to this Court  HELD 11
The Fundamental Rights of the appellants under article 191a and 251 have been infringed and they are entitled to be protected
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 respectfully when the National Anthem is sung is a violation of the fundamental right to freedom of conscience and freely to profess practice and propagate religion
Therefore the judgment of the High Court is set aside and the respondent authorities are directed to re admit the children into the school to permit them to pursue their studies without hindrance and to facilitate the pursuit of their studies by giving them the necessary facilities
538D E 539 C D 12 There is no provision of law which obliges anyone to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing
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 section 3 of the Prevention of Insults to National Honour Act
527B G 21 Article 191a of the Constitution guarantees to all citizens freedom of speech and expression but Article 192 provides that nothing in Article 191a shall prevent a State from making any law in so far as such law imposes reasonable restrictions on the exercise of the said right article 251 guarantees to all persons freedom of conscience and the right freely to profess practise and propagate religion subject to order morality and health and to the other provisions of Part III of the Constitution
article 51 Aa of the Constitution enjoins a dub on every citizen of India to abide by the Constitution and respect its ideals and institutions the National Flag and the National Anthem
526G H 527C 520 22 While on the one hand article 251 itself expressly subjects the right guaranteed by it to public order morality and health and to the other provisions of Part III on the other hand the State is also given the liberty to make a law to regulate or restrict any economic financial political or other secular activity which may be associated with religious practice and to provide for social welfare and reform even if such regulation restriction or provision affects the right guaranteed by article 251
Therefore whenever the Fundamental Right to freedom of conscience and to profess practise and propagate religion is invoked the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order morality and health whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic financial political or secular activity which may be associated with religious practise or to provide for social welfare and reform
531G H 532A B 23 Any law which may be made under clauses 2 to 6 of article 19 to regulate the exercise of the right to the freedoms guaranteed by article 191a to e and g must be a law  having statutory force and not a mere executive or departmental instructions
529E F The two circulars on which the Department in the instant case has placed reliance have no statutory basis and are mere departmental instructions
They cannot therefore form the foundation of any action aimed at denying to citizens Fundamental Right under article 191a
Further it is not possible to hold that the two circulars were issued in the interest of the sovereignty and integrity of India the security of the State friendly relation with foreign states public order decency or morality or in relation to contempt of court defamation or incitement to an offence  and if not so issued they cannot again be invoked to deny a citizen s Fundamental Right under article 191a
If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine conscientious religious objection then such compulsion would clearly contravene the rights guaranteed by article 191a and article 251
530C E 529C Kharak Singh vs State of UP  and Kameshwar Prasad vs The State of Bihar 1962 Supp
SCR 369 relied upon
The Kerala Education Act contains no provision of relevance and the appellants in the present case have never been found guilty of 521 misconduct such as that described in Chapter IX Rule 6 of the Kerala Education Rules
On the other hand the report of the Commission is to the effect that the children have always been well behaved law abiding and respectful
528 B C 4
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
Personal views and reactions are irrelevant
If the belief is genuinely and conscientiously held it attracts the protection of article 25 but subject of course to the inhibitions contained therein
533F G In the instant case what the petitioners truly and conscientiously believe is not in doubt
They do not hold their beliefs idly and their conduct is not the outcome of any perversity
The petitioners have not asserted those beliefs for the first time or out of any unpatriotic sentiment Jehovah s Witnesses as they call themselves appear to have always expressed and stood up for such beliefs all the world over
523C D Adelaide Company of Jehovah s Witnesses vs The Commonwealth   Minersville School District vs Gebitis 84 Law Ed
US 1376 West Virginia State Board of Education vs Barnette   Donald vs The Board of Education for the City Hamilton 1945 Ontario Reports 518 Sheldon vs Fannin 221 Federal Suppl
766 The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt   Rati Lal Panachand Gandhi vs The State of Bombay  Ors 1954 SCR 1055 SP Mittal etc
vs Union of India Commissioner Calcutta AIR 1984 SC 51 referred to