Professor VJ Emmanuel with his wife Lillikutty who took the matter to court. In the back row are Binu, Bijoe, Bindu, who were suspended from school in 1985 for not singing the national anthem. Image courtesy: jw.org
The jury is still out on the hijab row in Karnataka. The Supreme Court has delivered a split verdict on the ban on headscarves with one of the judges upholding the March 15 Karnataka High Court ruling validating it and the other setting aside the order. With a divided bench, the case will be placed before Chief Justice of India UU Lalit, who will appoint a larger bench to re-hear it.
While Justice Hemant Gupta dismissed the petitions against the hijab ban, Justice Sudhanshu Dhulia allowed them.
“It’s ultimately a matter of choice and nothing else. Uppermost in my mind was education of the girl child. I respectfully disagree with my brother judge,” said Justice Dhulia.
He said that the Karnataka High Court was wrong in deciding whether or not wearing the hijab was an essential part of Islam. Embracing the Supreme Court’s judgment in the Bijoe Emmanuel case, which had held that courts only need to test whether a practice is prevalent, was established and a bona fide one, the judge said wearing the hijab meets all three criteria, according to a report in The Hindu.
What is the Bijoe Emmanuel case that Justice Dhulia referred to? What was the apex court’s ruling in the matter?
The students who refused to sing the national anthem
Bijoe Emmanuel, 15, a Class 10 student and his sister Bine and Bindu, 14 and 10, studying in Class 9 and 5, were suspended from school after a complaint that they refused to sing the national anthem. The three children were followers of Jehovah’s Witnesses, a millenarian restorationist Christian denomination with beliefs distinct from mainstream Christianity.
The controversy dates back to 1985 when the three studied at NSS High School at Kidangoor in Kerala’s Kottayam district. It was run by the Hindu organisation Nair Service Society and had 11 students from Jehovah’s Witnesses then. Bijoe had been studying in the school for five years.
In a 2016 interview, the father of the children and retired college professor VJ Emmanuel, who fought the case for them, told The Indian Express, “For Jehovah’s Witnesses, only Jehovah should be worshipped. The national anthem is a prayer, and we should pray only to Jehovah (God) as per our faith…”
According to the family, the children stood in respect as others sang the anthem. The school management or other parents did not have a problem with that. “Some vested interests from outside the school raked up the issue,” he told the newspaper.
The probe in the case
The matter caught the attention of politicians once it was reported in a local newspaper. After the issue was raised in the Kerala Assembly by Congress (S) legislator VC Kabeer, the UDF government started a probe by a single-member commission.
The panel concluded that neither were the children disrespectful nor were there any complaints against them from the school. However, the district educational officer insisted that if the Emmanuels were to continue schooling, they would have to abide by the rules. He demanded that the students would have to give in writing that they would sing the national anthem along with the rest.
However, this was not acceptable to the family. On 25 July 1985, the three children along with nine others from the Jehovah’s Witnesses sect were suspended from school, a decision reportedly taken because of pressure from the government.
Taking the matter to the courts
Emmanuel and his wife Lillikutty moved Kerala high court, where their plea was rejected by a single judge. They attempted a re-appeal but that too was turned down, this time by a division bench.
Not the ones who give up the fight, Emmanuel took the matter to the Supreme Court on behalf of his children, the three young appellants, Bijoe, Binu and Bindu.
On 11 August 1986, the top court ruled in favour of the students in what is now known as the historic Emmanuel v/s State of Kerala, 1986, judgment. Granting protection to three children, the Supreme Court bench of Justices O Chinnappa Reddy and M M Dutt ordered that forcing the children to sing “Jana Gana Mana” violated their fundamental right to religion.
“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,” the SC court said.
“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….”
The judges of the SC said that the High Court “misdirected itself” by considering the national anthem in minuted detail and concluding that ” there was no word or thought… 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 Banner in the United States and so on…,” the order said.
The verdict is considered a landmark judgment on freedom of speech in India. After the SC ruling, the three Emmanuel children and other students from Jehovah’s Witnesses sect were re-admitted to school. They had already lost a year by then. The Emmanuels attended school for a day and left it; the others were admitted to different institutions.
The parents decided not to have formal education for their other four children as well.With inputs from agencies
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