MOOT COURT OF 1OTH SEM. 5 YEARS L.L.

MEMORIAL FOR - - - - - - - - PETITIONER

SUBMITTED TO- - - - - - - DOGRA LAW COLLEGE

BARI BRAHMANA , BISHNA
JAMMU.

TEAM CODE NO. - - - - - ‘A’

GROUP NO. - - - - - - II (2ND )

(CONSTITUTIONAL CASE)
 BEFORE THE HON’BLE HIGH COURT OF KERALA

Civil appellant jurisdiction--------------------

Civil appeal no. -------/2016

In the matter of

JACOB AND MARY --------------------------------------- (PETITIONERS )

V.

DEPARTMENT OF EDUCATION, GOVT. OF KERALA

AND ORS. --------------------------------------------------- (RESPONDENT
S)

MEMORIAL ON BEHALF OF PETITIONER

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 _______________________________________________
TABLE OF CONTENTS
______________________________________________
S/O CONTENTS Page no.

I INDEX OF AUTHORITIES --------------------- --- 3-5

II TABLE OF CASES ------------------------------- 6

III STATEMENT OF JURISDICTION --------------------- 7

IV STATEMENT OF FACTS ----------- ------------- 8

V QUESTIONS PRESENTED -------------------------- 9

VI SUMMARY OF ARGUMENTS - - - - - - - - - - - - - - - - - - - - - - - - 10-13

VII ARGUMENTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 14- 25

VIII PRAYER - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 26

MEMORIAL ON BEHALF OF PETITIONER

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_________________________________________________
INDEX OF AUTHORITIES
_________________________________________________

ARTICLES
I. 'The New Encyclopaedia Britannica' (Macropaedia) Vol. 10 page 538,

NEWSPAPER
i. The Times Of India.
ii. Press Trust of India (on March 5, 2016 at 2:51 PM)
iii. Indo Asian News Service - IANS – Mon 30 Nov, 2015 6:50 PM IST

BARE ACTS
I. Constitution of india.. 1950

REFERENCES / COMMENTARIES:-
I. The constitutional law of india ----Dr.J.N.Pandey
II. Supreme court reports (1986).
III. All India Reporter (1986)
IV. Supreme Court Digest. vol-
V. The Prevention of Insults to National Honour Act, 1971
VI.

DICTIONARIES:-

I. Oxford Dictionary of Law ,Fifth Edition.

II. Black’s Law Dictionary( Eighth Edition)-Bryan A. Garner.

MEMORIAL ON BEHALF OF PETITIONER

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_________________________________________________________________________

INTERNET SITES

1. http://www.findlaw.com

2. http://www.indiankanoon.com

3. http://www.indlawinfo.org/

4. http://www supremecourtcaselaw.com

5. http://www.livelaw.nic.in

6. http://www.lawsofindia.org

7. http://www.manupatra.com

8. http://www.scconline.com

ABBREVIATIONS AND ACRONYMS:-

I. & And
II. A.I.R All India Reporter
III. SC Supreme Court
IV. SCC Supreme court cases
V. ANRS. Another
VI. ORS. Others
VII. Bom. Bombay
VIII. M.P Madhya Pradesh
IX. Mad. Madras
X. E.g Exemplum Gratia ( for example)
XI. Edn. Edition
XII.

MEMORIAL ON BEHALF OF PETITIONER

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________________________________________________
TABLE OF CASES
________________________________________________

I. Bijoy Emmanuel & ors. V. State of Kerala (1986)3 SCC 615.

II. Srinivas v. state of Madras, AIR 1931 Mad. 70.
III. The Commissioner Hindu Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR1005;

Iv. Rati Lal Panachand Gandhi v. The State of Bombay & Ors., [1954] SCR
1055;

v. S.P. Mittal v. Union of India AIR (1984) 1 SC 1.

VI. Kameshwar Prasad v. The State of Bihar, [1962] SUPP. SCR 369 a
VII. Board of Education v. Barnette, 319 US 624 (1943)."
VIII. Kharak Singh v. State of Uttar Pradesh (supra) .AIR 1963 SC 1295

IX. Jehovah's Witnesses v. The Commonwealth, 67 CLR 116;

X . Minersville School District v. Gebitis, 84 Law Ed. US 1376;
XI. West Virginia State Board of Education v. Barnette, 87 Law Ed. 1628;
XII. Donald v. The Board of Education for the City Hamilton, 1945Ontario
Reports 518,
XIII. Sheldon v. Fannin, 221 Federal Suppl. 766;

MEMORIAL ON BEHALF OF PETITIONER

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________________________________________________
STATEMENT OF JURISDICTION
________________________________________________

The Petitioner submit the following WRIT To The Hon’ble High Court Of
kerala.
Pursuant To The Article 226 , clause 1 of The Statute of The Constitution of
India.
It is the esteemed Pleasure of the Petitioner to this Memorandam on behalf of
this Hon’ble Court. The Hon’ble Court has got jurisdiction to entertain this
memorandam and to Adjudicate upon the matter.
The Important and noticing term-is the Writ Jurisdiction of High Court under
Article 226 of the Indian Constitution.1

1.Art .226.

(1) Notwithstanding anything in Article 32 every High Court shall have power, throughout the territorial limits
in relation to which it exercises jurisdiction to issue to any person or authority including the appropriate cases,
any Government, within those territories, directions, orders of writs, including writs in the nature of Habeas
corpus, mandamus, prohibition, quo warranto and Certiorari or any of them-(a) for the enforcement of the
fundamental Rights conferred by Part III, and (b) for any other purpose. Thus the jurisdiction of the High Court
is not limited to protection of the Fundamental rights but also other legal rights as is clear from the words “ any
other purpose”. Those words make the jurisdiction of the High Court more extensive than that of the Supreme
Court which is confined to only for the enforcement of the legal right or legal duty.

------------------------------------------------------------------------------------------------------------------------------------

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_________________________________________________
STATEMENT OF FACTS
_________________________________________________
Before the Hon’ble High Court Of Kerala,
the Facts of the case are Humbly submitted:-

1. That ,the Petitioners are two school students of Xth standard in Kidengoor
High school, belongs to sect. called Jehovah’s Witnesses, who worship only
Jehovah.
2. That , the Petitioners believed the singing of National Anthem as contrary to
their faith.
3. That , the Petitioners were prepared only to stand the attention while
collective singing was in progress.
4. That, the petitioners stated that they believed in One God and One country
namely The Kingdom Of God, they were against attributing Godliness to any
country and would non subscribe to the concept of nationhood.
5. That , the Petitioners believed in One world and the concept of world Govt.
6. That , the Petitioners desisted from the actual singing only because of their
aforesaid honest and belief and conviction, but they used to stand up in
respectful silence Daily, during morning assembly when National Anthem was
sung.
7. That , the Headmaster of that very school issued a Notice of Expulsion to the
petitioners.
8. That, the Petitioners had filed a Petition against the School and Department
of Education, Govt. of Kerala , seeking the order passed by the Director as
Unconstitutional and being violated of their cultural and religious Rights.

MEMORIAL ON BEHALF OF PETITIONER

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________________________________________________
QUESTIONS PRESENTED
_________________________________________________

ISSUE-I.
Whether the order passed by the Director of Education , Govt. of Kerala , as
unconstitutional being violated of Cultural and religious rights under Article 25
or Not?
______________________________________________________

ISSUE -II.
Whether the respondents has infringe the Legal Rights of the students of Kerala
under Article 19(1) (a) or Not?

_____________________________________________________

ISSUE –III
Whether the Petitioner shown disrespect towards the National Anthem or Not?

_______________________________________________________

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_________________________________________________
SUMMARY OF ARGUMENTS
_________________________________________________
It is submitted that this very case involves:-
As we all know that, India is a secular State-
The concept of secularism is implicit in the Preamble of the constitution which
declares the resolve of the people to secure to all its citizens “liberty of
thought, belief, faith, and worship”.

A. Art.25:- FREEDOM OF RELIGIOUS IN INDIA.

Article 25- (1) guarantees to every person the freedom of conscience and the
right to profess, practise and propagate religion. The right guaranteed under
Article 25(1) like other Constitutional Rights, is not absolute. This Right is,
subject to public order, morality and health and to the other provisions of Part
III of the Constitution. Also under sub-clause(a) and (b) of clause (2) of Article
25 the state is empowered by the law:-
(a) to regulate or restrict any economic, financial, political, or other secular
activity which may be associated with Religious practice;
(b) to provide for (i) social welfare and reform, and (ii) to throw open Hindu
religious institutions of a public character to all classes and sections of
Hindus.
Thus, under Article 25(1) a person has a two- fold freedom:-
(a) freedom of conscience;
(b) freedom of profess, practise and propagate religion.
The freedom of Conscience’ is absolute inner freedom of the citizen to mould
his own relation with God in whatever manner he likes. When this freedom
becomes articulate and expressed in outward form it is ‘to profess and practise
religion’.

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To ‘profess’ a religion means to declare freely and openly one’s faith and belief.
He has Right to practise his belief by practical expression in any manner he
likes. To ‘practise’ religion is to perform the prescribed religious duties, rites
and rituals, and to exhibit his religious beliefs and ideas by such acts as
prescribed by religious order in which he believes. To ‘propagate’ means to
spread and publicize his religious view for the edification of others. But the
word ‘ propagation’ only indicates persuasion and exposition without any
element of coercion.

B. Article 19 (1)(a)- FREEDOM OF SPEECH AND EXPRESSION

Article 19 (1)(a) -says that all citizens shall have the right to freedom of speech
and expression.
But this Right is subject to limitations imposed under article 19(2) which
empowers the state to put ‘ reasonable’ restrictions on the following grounds,
e.g., security of the state, friendly relations with foreign states , public order ,
decency and morality, contempt of court, defamation, incitement to offence and
integrity and sovereignty of India.
And this Article further states that- Freedom of speech and expression means
the right to express one’s own convictions and opinions freely by words of
mouth, writing, printing, pictures or any other modes.2
The freedom of speech and expression includes liberty to propagate not one’s
views only. It also includes to propagate or publish the views of other people.3
Freedom of expression has four broad special purposes to serve:
(1) it helps an individual , to attain self- fulfilment;
(2) it assists in the discovery of truth;
(3) it strengthens the capacity of an individual in participating in decision
making; and
(4) it provides a mechanism by which it would be possible to establish a
reasonable balance between stability and social change
________________________________________________________________________________________

2.It thus includes the expression of one’s ideas through any communicable medium or visible representation,
such as gesture, signs, and the like (Lowell v. Griffin ,(1939)) 303 US 444.

3. Srinivas v. state of Madras, AIR 1931 Mad. 70.

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All members of the society should be able to form their own beliefs and
communicate them freely to others.

C. Section 2- of The Prevention of Insults To National Anthem

Act, 1971.
Section-2. Insult to Indian National Flag and Constitution of India.—
Whoever in any public place or in any other place within public view burns,
mutilates, defaces, defiles, disfigures, destroys, tramples upon or 4 [otherwise
shows disrespect to or brings] into contempt (whether by words, either spoken
or written, or by acts) the Indian National Flag or the Constitution of India or
any part thereof, shall be punished with imprisonment for a term which may
extend to three years, or with fine, or with both.

Explanation 1.—Comments expressing disapprobation or criticism of the

Constitution or of the Indian National Flag or of any measures of the
Government with a view to obtain an amendment of the Constitution of India or
an alteration of the Indian National Flag by lawful means do not constitute an
offence under this section.

Explanation 2.—The expression “Indian National Flag” includes any picture,

painting, drawing or photograph, or other visible representation of the Indian
National Flag, or of any part or parts thereof, made of any substance or
represented on any substance.

Explanation 3.—The expression “public place” means any place intended for
use by, or accessible to, the public and includes any public conveyance.5

[Explanation 4.—The disrespect to the Indian National Flag means and includes
—

(a) a gross affront or indignity offered to the Indian National Flag; or

(b) dipping the Indian National Flag in salute to any person or thing; or

______________________________________________________________
4 Subs. by Act 31 of 2003, sec. 2, for “otherwise brings” (w.e.f. 8-5-2003).

5. Ins. by Act 31 of 2003, sec. 2 (w.e.f. 8-5-2003).

______________________________________________________________

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(c) flying the Indian National Flag at half-mast except on occasions on which
the Indian National Flag is flown at half-mast on public buildings in accordance
with the instructions issued by the Government; or

(d) using the Indian National Flag as a drapery in any form whatsoever except
in State funerals or armed forces or other para-military forces funerals; or6

(e) using the Indian National Flag,—

(i) as a portion of costume, uniform or accessory of any description which is
worn below the waist of any person; or
(ii) by embroidering or printing it on cushions, handkerchiefs, napkins,
undergarments or any dress material; or]
(f) putting any kind of inscription upon the Indian National Flag; or
(g) using the Indian National Flag as a receptacle for receiving, delivering or
carrying anything except flower petals before the Indian National Flag is
unfurled as part of celebrations on special occasions including the Republic Day
or the Independence Day; or
(h) using the Indian National Flag as covering for a statue or a monument or a
speaker’s desk or a speaker’s platform; or
(i) allowing the Indian National Flag to touch the ground or the floor or trail in
water intentionally; or
(j) draping the Indian National Flag over the hood, top and sides or back or on a
vehicle, train, boat or an aircraft or any other similar object; or
(k) using the Indian National Flag as a covering for a building; or
(l) intentionally displaying the Indian National Flag with the “saffron” down.]

3. Prevention of singing of Indian National Anthem, etc.— Whoever

intentionally prevents the singing of the Indian National Anthem or causes
disturbance to any assembly engaged in such singing shall be punished with
imprisonment for a term which may extend to three years, or with fine, or with
both.7

______________________________________________________
6 Subs. by Act 51 of 2005, sec. 2, for clause (e). Clause (e), before substitution, stood as under

7. Ins. by Act 31 of 2003, sec. 3 (w.e.f. 8-5-2003).

______________________________________________________

MEMORIAL ON BEHALF OF PETITIONER

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D. Article 51A in The Constitution Of India 1949
51A. Fundamental duties - It shall be the duty of every citizen of India
(a) to abide by the Constitution and respect its ideals and institutions, the
National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national
struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do
so;
(e) to promote harmony and the spirit of common brotherhood amongst all
the people of India transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to the dignity of
women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and
reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour
and achievement.

__________________________________________________________________________

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________________________________________________
ARGUMENTS
_________________________________________________
It is submitted at the outset that:-
I. That, Petitioners are the kidangoor school students of Xth standard, who are
Jehovah’s witnessed truly and conscientiously believe that their religion does
not permit them to join any rituals except 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.

The Fundamental Rights of the Petitioners, under Art. 19(1)(a) and 25(1)
have been infringed and they are entitled to be protected.

The expulsion of the two students from the school for the reason that
because of their conscientiously held religious faith, they believed in One
God and One country namely The Kingdom Of God, they were against
attributing Godliness to any country and would non subscribe to the
concept of nationhood.

They do not join the singing of the National Anthem in the collective
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.

As we know that, Article 19 (1)(a) -says that all citizens shall have the right to
freedom of speech and expression.
But this Right is subject to limitations imposed under article 19(2) which
empowers the state to put ‘ reasonable’ restrictions on the following grounds,
e.g., security of the state, friendly relations with foreign states , public order ,
decency and morality, contempt of court, defamation, incitement to offence and
integrity and sovereignty of India.
And this Article further states that- Freedom of speech and expression means
the right to express one’s own convictions and opinions freely by words of

MEMORIAL ON BEHALF OF PETITIONER

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mouth, writing, printing, pictures or any other modes.8
The freedom of speech and expression includes liberty to propagate not one’s
views only. It also includes to propagate or publish the views of other people .9

Article 19(1)(a) of the Constitution guarantees to all citizens freedom of

speech and expression, but Article 19(2) provides that nothing in Article
19(1)(a) shall prevent a State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the said right. Art. 25(1)
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.

Therefore , the expulsion of the students from the School who are faithful
of Jehovah’s Witnessed for the reason that because of their conscientiously
held religious faith, they do stand up respectfully when the Anthem is sung,
would be violative of their Fundamental Rights under Article. 19(1)(a) and
Art.25(1) , especially when it was sought to be done in pursuance of Notice
issued by the Headmaster of That very School having no statutory force.

Any law which may be made under clauses 2 to 6 of Art. 19 to regulate the
exercise of the right to the freedoms guaranteed by Art. 19(1)(a) to (e) and
(g) must be 'a law' having statutory force and not a mere executive or
departmental instructions.

Even the Supreme Court held in one of the Leading Case10, that no person can
be compelled to sing a National Anthem, ‘‘ if he has genuine conscientious
objections based on his religious faith.’’
In this case, three children belonging to same witnessed were expelled
from the school for refusing to sing the National Anthem. The circular issued by
the Director of Public Instructions Kerala Had made it obligatory for students in
the schools to sing the National Anthem .

________________________________________________________________________________________

8. It thus includes the expression of one’s ideas through any communicable medium or visible representation,
such as gesture, signs, and the like (Lowell v. Griffin ,(1939)) 303 US 444.

9. . Srinivas v. state of Madras, AIR 1931 Mad. 70.

10. Bijoy Emmanuel V. state of Kerala. (1986) 3 SCC 615 popularly known as-National Anthem Case.

MEMORIAL ON BEHALF OF PETITIONER

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It was also held that, the Children ‘s expulsion from the school was a
violation of their fundamental Right under Article 19(1)(a) which also
includes the Freedom of Silence. 11

Art. 51-A(a) 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".

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 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 Art. 25(1).

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.

II. Jehovah’s witnessed have continually fought for their beliefs and tenents
the world over and they have been upheld in judicial pronouncements of several
countries. Some of these judicial pronouncements have been cited and
approved earlier in supreme Court, through in a different context;-

Ratilal Panachand Gandhi V. state of Bombay,12.

It was held that- The meaning of the expression 'Religion' in the context of the
Fundamental Right to freedom of conscience and the right to profess, practice

________________________________________

12. 1954 SCR 1055: AIR 1954 SC 388, 392;

MEMORIAL ON BEHALF OF PETITIONER

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and propagate religion, guaranteed by Art. 25 of the Constitution, and
has been explained in the well known cases of---

The Commissioner, Hindu Religious Endowments, Madras V. Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,13

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 outof 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.

No one bothered, No one worried. No one thought it disrespectful or

unpatriotic. The two students were left in peace and to their beliefs, that the
students 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
As we taken the foreign cases-

Minersville School District V. Gobitis,14 and

West Virginia State Board of Education v. Barnette,15 - 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.

_____________________

13. [1954] SCR 1005

14. 84 Law. Ed. US 1375
15. 87 Law Ed. 1628

MEMORIAL ON BEHALF OF PETITIONER

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Sheldon v. Fannin,16 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

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. 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 enjoy17.

 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 19(1) (a) of the Constitution guarantees to all citizens freedom of speech
and expression, but Article 19(2) provides that nothing in Art. 19(1)(a) 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.18

___________________________________________________

16. 221 Federal Supp. 766

17.Board of Education v. Barnette, 319 US 624 (1943)."

18. under Article 19 (1)(a) of the Indian constitution.

MEMORIAL ON BEHALF OF PETITIONER

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 Art. 25(1) 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. 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.

III. Therefore there is an issue regarding their infringement of

legal rights

The Fundamental Rights of the Petitioners under Art. 19(1) (a) and 25(1) have
been infringed and they are entitled to be protected. The expulsion of the two
students from the school for the reason that because of their conscientiously
held religious faith, they do not join the singing of the National Anthem,
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 respondent authorities are directed to re-admit the students

into the school, to permit them to pursue their studieswithout
hindrance and to facilitate the pursuit of their studies by giving them the
necessary facilities.

As it was held in case-

Sri Adi. Visheshwara of Kashi Vishwanath Temple, Varanasi

V.
State of U.P19

That Article 25-Freedom of religious--- Guaranteed by Article. 25, 26--- Is not

______________________________________

19. 1997 (3)Scale 1: 1997 (4) SCC 606.

_______________________________________________________________
MEMORIAL ON BEHALF OF PETITIONER

19
limited to matters of Doctrine--- They extended also to acts done in furtherance
of Religion –They contain a guarantee for rituals and observances, ceremonies
and modes of worship which are integral parts of the religion.

Art. 19(1)(a).

In Kameshwar Prasad v. The State of Bihar20,

- 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
or which would fall under the other limiting criteria specified in Art. 19(2) 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 v. State of Uttar Pradesh21 (supra) and

Kameshwar Pradesh v. State of Bihar 22(supra)

__we have no option but to hold that the expulsion of the students from the
school not joining the singing of the National Anthem though they respectfully
stood up in silence when the Anthem was sung was violative of Art. 19(1)(a).

Turning next to the Fundamental Right guaranteed by Art. 25, we may

usefully set out here that article to the extent relevant:

"25(1) 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

__________________
20. [1962] SUPP. SCR 369
21. AIR 1963 SC 1295
22. AIR 1954 Pat. 91.

MEMORIAL ON BEHALF OF PETITIONER

20
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 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 or restrict any economic, financial, political or other secular activity
which may be associated with religious practise and to provide for social

MEMORIAL ON BEHALF OF PETITIONER

21
welfare and reform, even if such regulation, restriction or provision affects the
right guaranteed by Art. 25(1).

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 practice or to provide for social
welfare and reform.

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. 25 of 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 Mutt23

Held that the protection of Article 25 and 26 is thus not limited to matters of
doctrine of belief. It extends also to acts done in pursuance of ‘religion’ and,
therefore, contain a guarantee for rituals and observances, ceremonies and
modes of worship which are integral part of religion. What Constitutes an
essential part of religious practice has to be decided by the courts with reference
to a doctrine of a particular religion and include practices which are regarded by
the community as a part of its Religion 24.

Also Donald v. The Board of Education for the City Hamilton25

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:

______________________________________________________________________________________
23. [1954] SCR 1005

24. The Commissioner, Hindu Religious Endowments, Madras V. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt, [1954] SCR 1005

25. 1945 Ontario Reports 518

MEMORIAL ON BEHALF OF PETITIONER

22
"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 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."

IV. Objections regarding the insult of honour of National

Anthem-is that,-

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.

The Prevention of Insults to National Honour Act was enacted in 1971.

While s. 2 deals with insult to the Indian National Flag and the Constitution of
India, s. 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."

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 s. 3 of the Prevention of Insults to National Honour
Act.
_______________________________

At the outside, I submit that-

MEMORIAL ON BEHALF OF PETITIONER

23
In 'The New Encyclopaedia Britannica' (Macropaedia)26 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 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." .

We, therefore, find that –

_the Fundamental Rights of the Petitioners under Art. 19(1) (a) and 25(1)
have been infringed and they are entitled to be protected.
We may allow the PETITIONER, set aside the Notice passed by the
Headmaster and direct the respondent authorities to re-admit the Students 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.
________________
26. Vol. 10 page 538,

MEMORIAL ON BEHALF OF PETITIONER

24
It is to be submit that-
Supreme Court observed in its ruling:-
"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
issung 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 Supreme Court says that in one of the Leading case27- fundamental Right
under Article 19(1)(a) which also includes the Freedom of Silence.
Therefore, I council From the Petitioner stated that-
Right to remain silence is also comes under the Fundamental Right of the
citizen of India.
------------------------------------------
27. Bijoy Emmanuel V. state of Kerala 1986 SCC. 615

_NOVEMBER 11, 2014

INDIA
1 India’s Landmark Supreme Court Case Upholds Free Speech for Almost 30
Years
July 8, 1985, began like any other school day for three children in a small town
in Kerala, in the southwest region of India. But on this day, the school’s
headmistress ordered that the national anthem, “Jana Gana Mana,” be sung in
the classroom. All in attendance were required to stand and sing. But 15-year-
old Bijoe and his younger sisters, Binu Mol (aged 13) and Bindu (aged 10), did
not comply with the order. As Jehovah’s Witnesses, their conscience would not
permit them to sing because they sincerely believed that doing so would
constitute a form of idolatry and an act of unfaithfulness to their God, Jehovah.

MEMORIAL ON BEHALF OF PETITIONER

25
V. J. Emmanuel, the children’s father, spoke to the headmistress and senior
teachers, who all agreed to allow the children to attend school without
complying with the order. But a school employee overheard the conversation
and reported the matter. It eventually came to the attention of a member of the
Legislative Assembly who raised the issue with the Assembly because he felt
that the children’s behavior was unpatriotic. Soon after, a senior school
inspector ordered the headmistress to expel the children unless they agreed to
sing the national anthem. Mr. Emmanuel appealed in vain to the school
authorities to reinstate his children. He filed a writ petition in the High Court of
Kerala. After the court ruled against him, he appealed to the Supreme Court of
India.
2 Supreme Court Upholds Constitutional Rights
On August 11, 1986, the Supreme Court overruled the High Court of Kerala in
the case of Bijoe Emmanuel v. State of Kerala. The Court held that expelling the
children based on their “conscientiously held religious faith” violated the
Constitution of India. Justice O. Chinnappa Reddy stated: “No provision of
law . . . obliges anyone to sing.” The Court noted that the right of free speech
and expression also includes the right to remain silent and that standing for the
national anthem showed proper respect. The Court ordered the school
authorities to readmit the children.
Justice Reddy observed: “They [Jehovah’s Witnesses] 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. . . . 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.”
3 Case Sets Legal Precedent for Religious Rights
Bijoe Emmanuel v. State of Kerala is profoundly significant because it affirms
that no one can be legally compelled to violate his conscientiously held
religious beliefs. While recognizing that fundamental rights are not absolute and
are subject to public order, morality, and health, the Court limited the State’s
ability to impose on its citizens arbitrary and disproportionate restrictions. The
decision stated: “To compel each and every pupil to join in the singing of the
National Anthem despite his genuine, conscientious religious objection . . .
would clearly contravene the rights guaranteed by Art. 19(1)(a) and Art. 25(1)
[of the Constitution of India].”

MEMORIAL ON BEHALF OF PETITIONER

26
The ruling also safeguards constitutional freedoms for minority groups. The
Court further stated: “The real test of a true democracy is the ability of even an
insignificant minority to find its identity under the country’s Constitution.”
Justice Reddy added: “Our personal views and reactions are irrelevant. If the
belief is genuinely and conscientiously held it attracts the protection of Art. 25
[of the Constitution].”
“Our tradition teaches tolerance; our philosophy preaches tolerance; our
constitution practises tolerance; let us not dilute it.”—Justice O. Chinnappa
Reddy
4 Societal Effects of the Decision
Bijoe Emmanuel v. State of Kerala was widely published and discussed in
Parliament. The decision is part of the syllabus in law schools when
constitutional law is taught. It is still referred to in law journals and in
newspaper articles as celebrated and famous and as having set a precedent for
tolerance in India. The decision has contributed considerably to defining
religious freedom in a pluralistic society. It safeguards free speech and
expression in India whenever this cherished right may be threatened.
5 Protecting Constitutional Rights Benefits All

The Emmanuel family today (back row left to right) Binu, Bijoe, and Bindu;
(front row) V. J. Emmanuel and Lillykutty
At the time, the Emmanuel family endured ridicule, pressure from authorities,
and even death threats, but they have no regrets for holding fast to their
religious convictions. Bindu, one of the daughters who is now married and has a
child of her own, relates: “To my surprise, I met an attorney who studied my
case in law school. He expressed great appreciation for the legal battle that
Jehovah’s Witnesses fought to establish human rights.”
V. J. Emmanuel recounts: “Recently I happened to meet Justice K. T. Thomas, a
retired Judge of the Supreme Court. When he learned that I was the father of the
three children involved in the anthem case, he congratulated me and said that
whenever he gets a chance to address a gathering of lawyers, he speaks about
the anthem case, for he feels that it was a signal victory for human rights.”
Almost 30 years after the ruling, Bijoe Emmanuel v. State of Kerala stands as
one of the pillars of free speech in India. Jehovah’s Witnesses are happy to have
had a part in contributing to the constitutional freedoms of all citizens in India.
MEMORIAL ON BEHALF OF PETITIONER

27
________________________________________________
PRAYER
_________________________________________________

Therefore, In the light of the submission raised, arguments advanced and

authorities cited. It is humbly prayed that ,
this Hon’ble High Court of Kerala may be placed to hold, adjudge and declare:-
I. That, the Director of education, Govt. of Kerala has passed an
unconstitutional order, being violative of their Religious Rights.

MEMORIAL ON BEHALF OF PETITIONER

28
 II. That, the Hon’ble High court of Kerala is hereby requested to uphold
the notice of Expulsion of two students.

GROUNDS
That, it is reported that the Petitioners were "law abiding" and that they
showed no disrespect to the National Anthem.

It is to be prayed that,
This Hon’ble High Court of Kerala may deems fit in the interest of Justice,
Equity, and Good Conscience.

ALL OF WHICH IS HUMBLY PRAYED,

COUNCILS FOR THE PETITIONER.

______________________________________________

MEMORIAL ON BEHALF OF PETITIONER

29