TaxTMI 
TaxTMI 
1986 (8) TMI 448
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....ere 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. Fina....
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.... 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 6,000 Witnesses were inmates of Nazi concentration camps, Communist and Fascist States usually forbid Watch Tower activities. In the U.S. 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 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 v. The Commonwealth, 67 CLR 116 a case decided by the Australian High Court. It is stated, "Jehovah's Witnesses are an association of....
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....an 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 v. 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 t....
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....rom 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. Art. 25(1) guarantees to all persons freedom of conscience and the 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 Arts. 19(1)(a) 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 Art. 51-A(a) of the Constitution enjoins a duty on every citizen o....
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....hat 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. 2. For national integration, the basis must be the school. 3. 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 ever....
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....ct 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 to make under the relevant cls. (2) to (6) of Art. 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Art. 19(1), not would the same be "a procedure established by law" within Art. 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 Art. 19(1)(a).Further it is not possible to hold that the two circulars were issued 'in the in....
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....ter 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 Art. 25. We see that the right to freedom of conscience and freely to profess, practise and propagate religion guaranteed by Art. 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, Art. 25(1) 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 ....
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....s 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." 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 Art. 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 Art. 25of the Constitution, has been explained in the well known cases of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR 1005 Rati Lal Panachand Gandhi v. The State of Bombay & Ors., [1954] SCR 1055 and S. P. Mittal Etc. Etc. v. Union of India & Ors, [1983] SCR 729. It is not neces....
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.... 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 free....
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....in its own existence' and added, "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 uniformi....
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....te 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 v. Barnette (supra) and some other cases, it was further observed, "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 d....