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Hijab and Chinnappa Reddy Cases connected to Ambedkar

Dr. Madabhushi Sridhar Acharyulu, LL.D.

Former Central Information Commissioner,

Professor of Constitution of India and

Dean, School of Law, Mahindra University, Hyderabad.

Patriotism does not mean shouting from the roof top. It is not correct to disrespect Indian flag. At the same time, not allowing the flags over night, that is happening in millions of houses in India, since last 15th August 2022, without properly washing, or putting in clean form is also not appropriate. Right time they should bring down all the improper flying flag at least before coming Independent day, without that it would amount to offence. 

Whether freedom of speech and expression under Article 19(1)(a) is not an absolute right and is subject to restriction under Clause 2 of the Article? Then why the Prevention of Insults to the National Honour Amendment Act, 2003 embraces to honour the national Symbols such as the National Flag and the National Anthem. This Act prohibits the disparagement of National Symbols. Under Section 2 of the Act if any person in a public place or under the view of public mutilates, burns, disfigures or defiles the National Flag he shall be punished with imprisonment of either description which may extend to three years or with fine or both.

Article 51A has imposed a non-binding duty upon its citizens to respect and adhere to the Constitution and the National Flag of the Country. Another provision is Article 19(1)(a) which deals with freedom of speech and expression which involves the right to fly the National Flag.

In the case of Union of India v. Naveen Jindal (2004), the petitioner Naveen Jindal was prevented from flying the National Flag above his office premises under the Flag Code of India. He filed a petition before the High Court that he was being restricted from doing so. Flying the National Flag falls under Article 19(2) of the constitution and is a symbol of free spirit and allegiance to one’s Country. Allowing only the officials and high dignitaries to fly the National Flag would be discriminatory for the rest of the people under Article 14 as everyone is entitled to fly the National Flag.

This judgment is remembered in Constitutional democracy of any nation.  It is relevant very much for the times of this day and decades to come up.

Hijab case

The Supreme Court recently delivered a split verdict in the Karnataka hijab ban case, directing the matter to be placed before the Chief Justice of India for appropriate directions. In March, 2022, the high court had dismissed the petitions filed by a section of Muslim students in Karnataka seeking permission to wear the hijab inside classrooms, ruling it is not a part of the essential religious practice in Islamic faith. The Supreme Court Justice Hemant Gupta has dismissed the appeals challenging the Karnataka High Court order, while Justice Sudhanshu Dhulia allowed them. In his judgment, Justice Dhulia referred to the Bijoe Emmanuel case, saying it “squarely covers the issue”.  The thing which was uppermost in mind was the education of girl child. It was a common knowledge that a girl child primarily in rural and semi-rural areas has a lot of difficulties, she has to do daily chores before she goes to school. There were other difficulties as well. Are we making her life any better? That was also a question in my mind.” The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court. This decision is yet to be finalized. In this context, we should understand the landmark judgment of Justice Chinnappareddy. He was born on 25th September 1922, died 10 years ago on 13 April 2013.  Chinnappa Reddy who authored judgment called “the Bijoe Emmanuel” judgment upholding the freedom of press and right to religion. On last day of the centenary of  Justice Chinnappa Reddy, father of Constitution, Ambedkar who fought for freedom of speech and right to religion should be gratefully remebered. 

The Supreme Court in the Bijoe Emmanuel (AIR 1987 SC 748, https://indiankanoon.org/doc/1508089/) upheld the freedom of speech and expression and the right to practise and propagate one’s religion. He said: “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 petitioner in Bijoe case, V.J. Emmanuel, a retired college teacher, recently died in October 2020. While dealing with certain significant theme of this order, the SC also said that, “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 Supreme Court further held, “we, therefore, find that the Fundamental Rights of the appellants under Art. 19(1)(a) and 25(1) 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. We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practises tolerance; let us not dilute it.”

Prevention of Insults to National Honour Act

This judgement had further discussed the applicability of Section 2 of the Prevention of Insults to National Honour Act of 1971, under which:

“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 fine, or with both.” The Court held that standing up silently “clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing.”

In addition, the Court ruled that that applicable regulatory measures created by the State of Kerala’s Department of Education on compulsory participation in singing the national anthem in schools amounted to mere “departmental instructions” and thus, they lacked statutory force within the meaning of Article 19 of the Constitution in order to place limitation on the right to freedom of expression. (See also Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.) According to the Court, “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 instruction.”

With respect to the alleged violation of the right to freedom of religion under Article 25 of the Constitution, the Court reiterated its jurisprudence that when the right to freely practice or profess a religious belief is invoked, the offending act at issue “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.” Chinnappareddy will remain in democratic Constitutional world as an international landmark in freedom of speech, called as National Anthem case. Ambedkar would remembered, among other many things, for fighting for fundamental right to speech, Chinnappa upheld that right through this judgment.

(12.4.2023)

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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