Bijoe Emmanuel verdict explained and why hijab case should go to a 5-judge Bench

In the Bijoe Emmanuel case, the court granted protection to three children of the Jehovah's Witness sect who did not join in singing the national anthem at their school.

New Delhi, Oct 14: The Supreme Court on Thursday delivered a split verdict in the hijab ban case. While Justice Hemant Gupta dismissed the appeals challenging the ban, Justice Sudhanshu Dhulia allowed them.

While allowing the appeals, Justice Dhulia referred to the Bijoe Emmanuel case saying that the issue is covered squarely in this judgment. "It is ultimately a matter of choice. Nothing more, nothing less. I have also held the ratio laid down by the Supreme Court in the case of Bijoe Emmanuel squarely covers the issue," Justice Dhulia said.

The Bijoe Emmanuel case came before up a Bench comprising Justices O Chinnappa Reddy and M M Dutt in 1986. The court granted protection to three children of the Jehovah's Witness sect who did not join in singing the national anthem at their school. The court held that forcing the children to sing the national anthem violated their fundamental right to religion.

V J Emmanuel, the father of the children pleaded with the court that for the Jehovah's Witnesses, only Jehovah should be worshipped. Since the anthem is a prayer, the children would stand up in respect when it was playing. However, their faith did not allow them to sing it.

The Supreme Court had said that while the Kerala High Court had examined whether or not the national anthem contained any word or thought, which could offend anyone's religious susceptibilities, it had misdirected itself as that was not the question at all.

When it all began:

In 1985 at Kidangoor in Kottayam district, brother Bijoe Emmanuel (15), Binu and Bindu were suspended from their school after a complaint that they did not sing the national anthem.

The siblings were studying at the NSS High School which at that time had 11 students from the Jehovah's Witnesses religious sect at that time. The parents of the siblings V J Emmanuel and mother Lillikutty moved the High Court where their plea was rejected by a single judge Bench. After an appeal failed, they moved the Supreme Court.

After winning the case, their children returned to the school only for a day. The father said that he went to court not to protect the right of his children to study in a school. It was meant for the freedom of worship of all members of the Jehovah's Witnesses. The other students from that school moved to other schools.

The verdict of the SC:

"Article 25 (right to practise and propagate your religion) 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," the Supreme Court had said.

Our tradition teaches tolerance and our philosophy preaches tolerance and our Constitution practises tolerance, the court had said.

"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, practise and propagate religion," the court had also said.

Why the hijab case should be heard by a larger Bench:

First and foremost, the matter should be heard by a larger Bench preferably 5 judges as it has to be decided whether the right to practice religion can intertwine with the right and autonomy of educational institutions to decide their uniform.

While private institutions have autonomy to decide on the uniform, the court needs to study and decide whether such issues should be looked at in a uniform manner.

The All India Bar Association has written to the Chief Justice of India favouring a Constitution Bench comprising at least 5 judges including a Muslim judge. "In the fairness of the matter, it is humbly prayed that the hijab case be referred to a larger bench as this is an important matter for all the citizens of India," the Association's chairman and senior advocate Dr. Adish C Aggarwala said.

He also pointed out that the Bench did not have enough time to adjudicate the matter since Justice Hemant Gupta was retiring on October 16.

Considering the complexities of the matter which also involves several issues such a female dignity, freedom of expression and the school's right to decide on uniform, it would better if the matter is heard by a Constitution Bench. A Constitution Bench would also have the right to re-examine the Emmanuel verdict which was delivered by a two-judge Bench.