judgement:
ION: Civil Appeal No. 870 of 1986 From the Judgment and order dated 7.12.1985 of the Kerala High Court in W.A .
No. 483 of 1985.
F.S. Nariman, T.S. Krishnamurthy Iyer, K.J. John and M. Jha for the Appellants.
G. Viswanatha Iyer and Mrs. Baby Krishnan for Respondent Nos.
I to 3.
522 P.S. Poti, E.M.S. Anam and James Vincent for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The three child appellants, Bijoe.
Binu Mol and Bindu Emmanuel, are the faithful of Jehovah 's Witnesses.
They attend school.
Daily, during the morning Assembly, when the National Anthem 'Jana Gana Mana ' is sung, they stand respectfully but they do not sing.
They do not sing because, according to them, it is against the tenets of their religious faith not the words or the thoughts of the Anthem but the singing of it.
This they and before them their elder sisters who attended the same school earlier have done all these several years.
No one bothered, No one worried.
No one thought it disrespectful or unpatriotic.
The children were 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.
Finally the children filed a Writ Petition in the High Court seeking an order restraining the authorities from preventing them from attending School.
First a learned single judge and then a Division Bench rejected the prayer of the children.
They have now come before us by special leave under article 136 of the Constitution.
We are afraid the High court misdirected itself and went off at a tengent.
They considered, in minute detail, each and every word and thought of the National Anthem and concluded that there was no word 523 or thought in the National Anthem 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 banna in the United States and so on.
In their words in the Writ Petition they say, "The students who are Witnesses do not sing the Anthem though they stand up on such occasions to show their respect to the National Anthem.
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. " That the petitioners truly and conscientiously believe what they say 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 these beliefs for the first time or out of 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 as we shall presently show.
Jehovah 's Witnesses and their peculiar beliefs though little noticed in this country, have been noticed, we find, in the Encyclopaedia Britannica and have been the subject of judicial pronouncements elsewhere.
In 'The New Encyclopaedia Britannica ' (Macropaedia) Vol.
10 page 538, 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 524 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 vs The Commonwealth, ; a case decided by the Australian High Court.
It is stated, "Jehovah 's Witnesses are an association of persons loosely organised throughout Australia and elsewhere who regard the literal interpretation of the Bible as Fundamental to proper religious beliefs." "Jehovah 's Witnesses believe that God, Jehovah, is the Supreme ruler of the universe.
Satan or Lucifer was originally part of God 's organization and the perfect man was placed under him.
He rebelled against God and set up his own organization in challenge to God and through that organization had ruled the world.
He rules and controls the world through material agencies such as organized political, religious, and financial bodies.
Christ, they believe, came to earth to redeem all men who would devote them selves entirely to serving God 's will and purpose and He will come to earth again (His second coming has already begun) and will over throw all the powers of evil." "These beliefs lead Jehovah 's Witnesses to proclaim and teach publicly both orally and by means of printed books and pamphlets that the British Empire and also other organized political bodies are organs of Satan, unrighteously governed and identifiable with the Beast in the thirteenth chapter of the Book of Revelation.
Also that Jehovah 's Witnesses are Christians entirely devoted to the Kingdom of God, which is "The Theocracy" that they have no part in the political affairs of the world and must not interfere in the least manner with war between nations.
They must be entirely neutral and not interfere with the drafting of men of nations they go to war.
And also that wherever there is a conflict between the laws of Almighty God and the Laws of man the Christian must always obey God 's law in preference to man 's law.
All laws of men, however, in harmony with God 's law the Christian obeys.
God 's law is expounded and taught by Jehovah 's Witnes 525 ses.
Accordingly they refuse to take an oath of allegiance to the King or other constituted human authority.
" The case of Adelaide Company of Jehovah 's Witnesses vs The Commonwealth (supra) arose out of an action to restrain the Commonwealth of Australia from enforcing the National Security (Subversive Associations) Regulations to the Jehovah 's Witnesses.
Minersville School District vs Gobitis, 84 Law.
US 1375 and West Virginia State Board of Education vs Barnette, ; 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.
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 vs 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 the Jehovah 's Witnesses: "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 526 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." Sheldon vs Fannin, 221 Federal Supp.
766 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.
Both precedent and authority for their refusal to stand is claimed to be found in the refusal of three Hebrew children Shadrach, Meshach and Abednege, to bow down at the sound of musical instruments playing patriotic religious music throughout the land at the order of King Nebuchadnezzar of ancient Babylon. (Daniel 3: 1328) 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.
(Exodus 20: 4 5).
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 enjoy (See Board of Education vs Barnette, ; (1943).
" 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 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 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.
article 25(1) guarantees to all persons freedom of conscience and the 527 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 articles 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 article 51 A(a) of the Constitution enjoins a duty on every citizen of India "to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
" 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.
Parliament has not been unmindful of 'National Honour '.
The Prevention of Insults to National Honour Act was enacted in 1971.
While section 2 deals with insult to the Indian National Flag and the Constitution of India, section 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." 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 section 3 of the Prevention of Insults to National Honour Act.
The Kerala Education Act contains no provision of relevance.
Section 36, however, enables the Government to make rules for the purpose of carrying into effect the provisions of the Act and in particular to provide for standards of education and courses of study.
The Kerala Education Rules have been made pursuant to the powers conferred by the Act.
Chapter VIII of the Rules provides for the organisation of instruction and progress of pupils.
Rule 8 of Chapter VIII 528 provides for moral instruction and expressly says "Moral instruction should form a definite programme in every school but it should in no way wound the social or religious susceptibilities of the peoples generally.
" The rule goes on to say that 'the components of a high character ' should be impressed upon the pupils.
One of the components is stated to be 'love of one 's country '.
Chapter IX deals with discipline.
Rule 6 of Chapter IX provides for the censure, suspension or dismissal of a pupil found guility of deliberate in subordination, mischief, fraud, mal practice in examinations, conduct likely to cause unwholesome influence on other pupils etc.
It is not suggested that the present appellants have ever been found guility of misconduct such as that 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.
For national integration, the basis must be the school.
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 every day before actual instruction begins.
The whole school with all the pupils and teachers shall be gathered for the Assembly.
After the singing of the National Anthem the whole school shall, in one voice, take 529 the National Pledge before marching back to the classes.
" Apart from the fact that the circulars have no legal sanction behind them in the sense that they are not issued under the authority of any statute, we also notice that the circulars do not oblige each and every pupil to join in the singing even if he has any conscientious objection based on his religious faith, nor is any penalty attached to not joining the singing.
On the other hand, one of the circulars (the first one) very rightly emphasise the importance of religious tolerance.
It is said there, "All religions should be equally respected.
" If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection, then such compulsion would clearly contavene the rights guaranteed by article 19(1)(a) and article 25(1).
We have referred to article 19(1)(a) which guarantees to all citizens freedom of speech and expression and to article 19(2) which provides that nothing in article 19(1)(a) shall prevent a State from making any law, in so far as such law impose reasonable restrictions on the exercise of the right conferred by article 19(1)(a) 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.
The law is now well settled that any law which may be made under clauses (2) to (6) of article 19 to regulate the exercise of the right to the freedoms guaranteed by article 19(1)(a) to (e) and (g) must be 'a law ' having statutory force and not a mere executive or departmental instruction.
In Kharak Singh vs State of U.P., ; the question arose whether a police regulation which was a mere departmental instruction, having no statutory basis could be said to be a law for the purpose of article 19(2) to (6).
The Constitution Bench answered the question in the negative and said, "Though learned Counsel for the respondent started by attempting such a justification by invoking section 12 of the Indian Police Act 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 530 to make under the relevant cls.
(2) to (6) of article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub clauses of article 19(1), not would the same be "a procedure established by law" within article 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 article 19(1)(a).
Further it is not possible to hold that the two circulars were issued 'in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence ' and if not so issued, they cannot again be invoked to deny a citizen 's Fundamental Right under article 19(1)(a).
In Kameshwar Prasad vs The State of Bihar, [1962] SUPP.
SCR 369 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 of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in article 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 vs State of Uttar Pradesh (supra) and Kameshwar Pradesh vs State of Bihar (supra) we have no option but to hold that the expulsion of the children from the school not joining the singing of 531 the National Anthem though they respectfully stood up in silence when the Anthem was sung was violative of article s19(1)(a).
Turning next to the Fundamental Right guaranteed by article 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 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 article 25.
We see that the right to freedom of conscience and freely to profess, practise and propagate religion guaranteed by article 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, article 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 welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by article 25(1).
Therefore, 532 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.
It is the duty and function of the Court so to do.
Here again as mentioned in connection with article 19(2) to (6), it must be a law having the force of a statute and not a mere executive or a departmental instruction.
We may refer here to the observations of Latham, CJ.
in Adelaide Company of Jehovah 's Witnesses vs The Commonwealth (supra), a decision of the Australian High Court quoted by Mukherje, J. in the Shrirur Mutt case.
Latham, CJ.
had said: "The Constitution protects religion within a community organized under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organized.
This view makes it possible to reconcile religious freedom with ordered government.
It does not mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace, order and good government of Australia precludes any consideration by a court of the question whether or not such a law infringes religious freedom.
The final determination of that question by Parliament would remove all reality from the Constitutional guarantee.
That guarantee is intended to limit the sphere of action of the legislature.
The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament, If the guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringes it and by declining to enforce them.
The courts 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.
" 533 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 article 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 article 25 of the Constitution, has been explained in the well known cases of The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, ; Rati Lal Panachand Gandhi vs The State of Bombay & Ors., [1954] SCR 1055 and section P. Mittal Etc.
vs Union of India & Ors, ; It is not necessary for our present purpose to refer to the exposition contained in these judgments except to say that in the first of these cases Mukherjea, J. made a reference to "Jehova 's Witnesses" and appeared to quote with approval the views of Latham, CJ., of the Australian High Court in Adelaide Company vs The Commonwealth (supra) and those of the American Supreme Court in West Virginia State Board of Education vs Barnettee (supra).
In Ratilal 's case we also notice that Mukherjea, J. quoted as appropriate Davar, J. 's following observations In Jarnshedji vs Soonabai, 23 Bomaby ILR 122: "If this is the belief of the Community and it is proved undoubtedly to be the belief of the Zoroastrian community, a secular Judge is bound to accept that belief it is not for him to sit in judgement on that belief, he has no right to interfere with the conscience of a doner who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind.
" We do endorse the view suggested by Davar J 's observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion.
Our personal views and reactions are irrelevant.
If the belief is genuinely and conscientiously held it attracts the protection of article 25 but subject, of course, to the inhibitions contained therein.
In Minersville School Dist.
vs Gobitis (supra) the question arose whether the requirement of participation by pupils and public schools in the ceremony of saluting the national flag did not infringe the liberty guaranteed by the 14th amendment, in the case of a pupil who re 534 fused to participate upon sincere religious grounds.
Frankfurter, J. great exponent of the theory of judicial restrain that he was speaking for the majority of the United States Supreme Court upheld the requirement regarding participation in the ceremony of flag salutation primarily on the ground, "The wisdom of training children in patriotic impulses by those compulsions which necessarily prevade so much of the educational process is not for our independent judgment . .
For ourselves, we might be tempted to say that the deepest patriotism is best engendered by giving unfettered scope to the most 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 freedom of the individual from compulsion as to what he shall think and what he shall say, at least where the compulsion is to bear false witness to his religion" 535 It was further added: "History teaches us that there have been but few infringements of personal liberty by the State which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, had politically helpless manners.
" We do not think that it is necessary to consider the case of Gobitis at greater length as the decision was overruled very shortly after it was pronounced by the same ' court in West Virginia State Board of Education vs Barnette (supra).
Justices Black and Douglas who had agreed with Justice Frankfurter in the Gobitis 's case retraced their steps and agreed with Justice Jackson who gave the opinion of the court in West Virginia State Board of Education vs Barnette (supra).
Justice Jackson in the course of his opinion observed, It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.
It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barran of meaning.
It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a dear and present danger of action of a kind the State is empowered to prevent and punish.
It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence.
But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression.
To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual 's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind." Justice Jackson referred to Lincoln 's famour dilemma 'must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence ' and added, 536 "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 uniformity for which history indicates a disappointing and disastrous end.
" Dealing with the argument that any interference with the authority of the school Board would in effect make the court the School Board for the country as suggested by Justice Frankfurter, Justice Jackson said, "There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution .
We cannot, because of modest estimates of our competence in such specialities as public education, withhold the judgment that history authenticates as the function of this court when liberty is infringed." Justice Jackson ended his opinion with the statement "If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
If there are any circumstances which permit an exception, they do not now occur to us.
537 We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
" Sheldon vs Fannin (supra) was a case where the pupils refused even to stand when the National Anthem was sung.
We do not have to consider that situation in the present case since it is the case of the appellants and it is not disputed that they have always stood up and they will always stand up respectfully when the National Anthem is sung.
Donald vs Hamilton Board Education (supra) was again a case of objection by Jehovah 's witnesses to flag salutation and singing the national anthem.
Gillanders, J.A., said: "There is no doubt that the teachers and the school board, in the case now being considered, in good faith prescribed the ceremony of the flag salute only with the thought of inculcating respect for the flag and the Empire or Commonwealth of Nations which events of recent years have given more abundant reason than ever before to love and respect.
If I were permitted to be guided by my personal views, I would find it difficult to understand how any well disposed person could offer objection to joining in such a salute 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 vs Barnette (supra) and some other cases, it was further observed, 538 "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 disturbing and constitutes conduct injurious to the moral tone of the school.
It is not claimed that the appellants themselves engaged in any alleged religious ceremonies or observations, but only that they refrained from joining in the exercises in question . . .
To do just that could not, I think be viewed as conduct injurious to the moral tone of the school or class.
" 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, practice and propagate religion.
Shri Vishwa Nath Iyer and Shri Potti, who appeared for the respondents suggested that the appellants, who belonged but to a religious denomination could not claim the Fundamental Right guaranteed by article 25(1) of the Constitution.
They purpored to rely upon a sentence in the judgment of this court in Jagdishwaranand vs Police Commissioner, Calcutta, AIR 1984 SC 51.
The question in that case was whether the Ananda Margis had a fundamental right within the meaning of article 25 or Art 26 to perform Tandava dance in public streets and public places.
The Court found that Anand Marga was a Hindu religious denomination and not a separate religion.
The court examined the question whether the Tandava dance was a religious rite or practise essential to the tenets of the Ananda Marga and found that it was not.
On that finding the court concluded that the Ananda Marga had no fundamental right to perform Tandava dance in public streets and public places.
In course of the discussion, at one place, there is found the following sentence: "Mr. Tarkunde, Counsel for the petitioner had claimed 539 protection of article 25 of the Constitution, but in view of our finding that Ananda Marga was not a separate religion.
application of article 25 is not attracted.
" This sentence appears to have crept into the judgment by some slip.
lt is not a sequitur to the reasoning of the court on any of the issues.
In fact, in the subsequent paragraphs, the court has expressly proceeded to consider the claim of the Ananda Marga to perform Tandava dance in public streets pursuant to the right claimed by them under article 25(1).
We, therefore, find that the Fundamental Rights of the appellants under article 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, 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.
The appellants are entitled to their costs.
M.L.A. Appeal allowed.

summary/full:
The appellants three children belong to a sect called Jehovah 's Witnesses who worship only Jehovah the Creator and none other.
They refused to sing the National Anthem: 'Jana Gana Mana ' because, according to them, it is against the tenets of their religious faith not the words or the thoughts of the National Anthem but the singing of 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.
A Commission was appointed to enquire and report, and it reported that the children were "law abiding" and that they showed no disrespect to the National Anthem.
However, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the appellants from school from July 26, 1985.
A representation by the father of the children to the Education Authorities requesting that the children may be permitted to attend the 519 school pending orders from the Government having failed, the appellants filed a Writ Petition in the High Court seeking an order restraining the authorities from preventing them from attending the school.
A single Judge and then a Division Bench rejected the prayer of the appellants.
Allowing the appeal by Special Leave, to this Court, ^ HELD: 1.1.
The Fundamental Rights of the appellants under article 19(1)(a) and 25(1) have been infringed and they are entitled to be protected.
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 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 judgment of the High Court is set aside and the respondent authorities are directed to re admit the children 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.
[538D E; 539 C D] 1.2 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 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 section 3 of the Prevention of Insults to National Honour Act.
[527B G] 2.1 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. article 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.
article 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".
[526G H; 527C] 520 2.2 While on the one hand, article 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 article 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.
[531G H; 532A B] 2.3 Any law which may be made under clauses 2 to 6 of article 19 to regulate the exercise of the right to the freedoms guaranteed by article 19(1)(a) to (e) and (g) must be 'a law ' having statutory force and not a mere executive or departmental instructions.
[529E F] The two circulars on which the Department, in the instant case, has placed reliance have no statutory basis and are mere departmental instructions.
They cannot, therefore, form the foundation of any action aimed at denying to citizens Fundamental Right under article 19(1)(a).
Further it is not possible to hold that the two circulars were issued 'in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence ' and if not so issued, they cannot again be invoked to deny a citizen 's Fundamental Right under article 19(1)(a).
If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection, then such compulsion would clearly contravene the rights guaranteed by article 19(1)(a) and article 25(1).
[530C E; 529C] Kharak Singh vs State of U.P., ; and Kameshwar Prasad vs The State of Bihar, [1962] Supp.
SCR 369 relied upon.
The Kerala Education Act contains no provision of relevance and the appellants in the present case have never been found guilty of 521 misconduct such as that described in Chapter IX, Rule 6 of the Kerala Education Rules.
On the other hand, the report of the Commission, is to the effect that the children have always been well behaved, law abiding and respectful.
[528 B C] 4.
The question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion.
Personal views and reactions are irrelevant.
If the belief is genuinely and conscientiously held it attracts the protection of article 25 but subject, of course, to the inhibitions contained therein.
[533F G] 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 out of 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.
[523C D] Adelaide Company of Jehovah 's Witnesses vs The Commonwealth, ; ; Minersville School District vs Gebitis, 84 Law Ed.
US 1376; West Virginia State Board of Education vs Barnette, ; ; Donald vs The Board of Education for the City Hamilton, 1945 Ontario Reports 518, Sheldon vs Fannin, 221 Federal Suppl.
766; The Commissioner Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, ; ; Rati Lal Panachand Gandhi vs The State of Bombay & Ors., [1954] SCR 1055; SP Mittal etc.
vs Union of India Commissioner, Calcutta, AIR 1984 SC 51 referred to.


judgement:
ition (Criminal) No.1451 of 1985 Under Article 32 of the Constitution of India.
Petitioner in person.
Harbans Lal.
Tapas Ray, D.K. Sinha, J.R. Das, Girish Chander, Ms. Subhashini, Pramod Swarup, D. Bhandari, C.V.S. Rao, B.D. Sharma, D.N. Mukherjee, R. Mukherjee, A.V. Rangam.
T.V. Ratnam, S.B. Bhasme, A.S. Bhasme and A.M. Khanwilkar for the Respondents.
The order of the Court was delivered by MISRA J.
We made an Order on 12th July, 1986 issuing various directions in regard to physically and mentally retarded children as also abandoned or destitute children who are lodged in various jails in the country for 'safe custody '.
We also directed the Director General of Doordarshan as also the Director General of All India Radio to give publicity seeking cooperation of non governmental social service organisations in the task of rehabilitation of these children.
We were extremely pained and anguished that these children should be kept in jail instead of being properly looked after, given adequate medical treatment and imparted training in various skills which would make them independent and self reliant.
Some years ago we came out with a National Policy for the Welfare of Children which contained the following preambulatory declaration: "The nation 's children are a supremely important asset.
Their nurture and solicitude are our responsibility.
Children 's programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physi cally fit, mentally alert and morally healthy, endowed with the skill and motivations needed by society.
Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice.
" If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality.
That 565 is why all the statutes dealing with children provide that child shall not be kept in jail.
Even apart from this statutory prescription, it is elementary that a jail is hardly a place where a child should be kept.
There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society.
It is a matter of regret that despite statutory provisions and frequent exhortations by social scientists, there are still a large number of children in different jails in the country as is now evident from the reports of the survey made by the District Judges pursuant to our order dated 15th April, 1986.
Even where children are accused of offences, they must not be kept in jails.
It is no answer on the part of the State to say that it has not got enough number of remand homes or observation homes or other places where children can be kept and that is why they are lodged in jails.
It is also no answer on the part of the State to urge that the ward in the jail where the children are kept in separate from the ward in which the other prisoners are detained.
It is the atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging him from the society and breeding in him aversion bordering on hatred against a system which keeps him in jail.
We would therefore like once again to impress upon the State Governments that they must set up necessary remand homes and observation homes where children accused of an offence can be lodged pending investigation and trial.
On no account should the children be kept in jail and if a State Government has not got sufficient accommodation in the remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail.
The problem of detention of children accused of an offence would become much more easy of solution if the investigation in the police and the trial by the Magistrate could be expedited.
The reports of survey made by District Judges show that in some places children have been in jail for quite long periods.
We fail to see why investigation into offences alleged to have been committed by children cannot be completed quickly and equally why can the trial not take place within a reasonable time after the filing of the charge sheet.
Really speaking, the trial of children must take place in the Juvenile Courts and not in the regular criminal courts.
There are special provisions enacted in various statutes relating to children providing for trial by Juvenile Courts in accordance with a special procedure intended to safeguard the interest and welfare of children, but, we find that in many of the States there are no Juvenile Courts functioning at all and 566 even where there are Juvenile Courts, they are nothing but a replica of the ordinary criminal courts, only the label being changed.
The same Magistrate who sits in the ordinary criminal court goes and sits in the Juvenile Court and mechanically tries cases against children.
It is absolutely essential, and this is something which we wish to impress upon the State Governments with all the earnestness at our command, that they must set up Juvenile Courts, one in each district, and there must be special cadre of Magistrates who must be suitably trained for dealing with cases against children.
They may also do other criminal work, if the work of the Juvenile Court is not sufficient to engage then fully, but they must have proper and adequate training for dealing with cases against Juveniles, because these cases require a different type of procedure and qualitatively a different kind of approach.
We would also direct that where a complaint is filed or first information report is lodged against a child below the age of 16 years for an offence punishable with imprisonment of not more than 7 years, the investigation shall be completed within a period of three months from the date of filing of the complaint or lodging of the First Information Report and if the investigation is not completed within this time, the case against the child must be treated as closed.
If within three months, the chargesheet is filed against the child in case of an offence punishable with imprisonment of not more than 7 years, the case must be tried and disposed of within a further period of 6 months at the outside and this period should be inclusive of the time taken up in committal proceedings, if any.
We have already held in Hussainara Khatoon & Ors.
vs Home Secretary, State of Bihar, [1979] 3 SCR 169 that the right to speedy trial is a fundamental right implicit in article 21 of the Constitution.
If an accused is not tried speedily and his case remains pending before the Magistrate or the Sessions Court for an unreasonable length of time, it is clear that his fundamental right to speedy trial would be violated unless, of course, the trial is held up on account of some interim order passed by a superior court or the accused is responsible for the delay in the trial of the case.
The consequence of violation of the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.
One of the primary reasons why trial of criminal cases is delayed in the courts of Magistrates and Additional Sessions Judges is the total inadequacy of judge strength and lack of satisfactory working conditions for Magistrates and Additional Sessions Judges.
There are courts of Magistrates and Additional Sessions Judges where the workload is so heavy that it is just not 567 possible to cope with the workload, unless there is increase in the strength of Magistrates and Additional Sessions Judges.
There are instances where appointments of Magistrates and Additional Sessions Judges are held up for years and the courts have to work with depleted strength and this affects speedy trial of criminal cases.
The Magistrates and Additional Sessions Judges are often not provided adequate staff and other facilities which would help improve their disposal of cases.
We are, therefore, firmly of the view that every State Government must take necessary measures for the purpose of setting up adequate number of courts, appointing requisite number of Judges and providing them the necessary facilities.
It is also necessary to set up an Institute or Academy for training of Judicial officers so that their efficiency may be improved and they may be able to regulate and control the flow of cases in their respective courts.
The problem of arrears of criminal cases in the courts of Magistrates and Additional Sessions Judges has assumed rather disturbing proportions and it is a matter of grave urgency to which no State Government can afford to be oblivious.
But, here, we are not concerned with the question of speedy trial for an accused who is not a child below the age of 16 years.
That is a question which may have to be considered in some other case where this Court may be called upon to examine as to what is reasonable length of time for trial beyond which the court would regard the right to speedy trial as violated.
So far as a child accused of an offence punishable with imprisonment of not more than 7 years is concerned, we would regard a period of 3 months from the date of filing of the complaint or lodging of the First Information Report as the maximum time permissible for investigation and a period of 6 months from the filing of the charge sheet as a reasonable period within which the trial of the child must be completed.
If that is not done, the prosecution against the child would be liable to be quashed.
We would direct every State Government to give effect to this principle or norm laid down by us in so far as any future cases are concerned, but so far as concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, we would direct every State Government to complete the investigation within a period of 3 months from today if the investigation has not already resulted in filing of chargesheet and if a chargesheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed.
We have by our order dated 5th August 1986 called upon the State Government to bring into force and to implement vigorously the 568 provisions of the Children 's Acts enacted in the various States.
But we would suggest that instead of each State having its own Children 's Act in other States.
it would be desirable if the Central Government initiates Parliamentary Legislation on the subject, so that there is complete uniformity in regard to the various provisions relating to children in the entire territory of the country.
The Children 's Act which may be enacted by Parliament should contain not only provisions for investigation and trial of offences against children below the age of 16 years but should also contain mandatory provisions for ensuring social, economic and psychological rehabilitation of the children who are either accused of offences or are abandoned or destitute or lost.
Moreover, it is not enough merely to have legislation on the subject, but it is equally, if not more, important to ensure that such legislation is implemented in all earnestness and mere lip sympathy is not paid such legislation and justification .
for non implementation is not pleaded on ground of lack of finances on the part of the State.
The greatest recompense which the State can get for expenditure on children is the building up of a powerful human resource ready to take its place in the forward march of the nation.
We have already given various directions by our orders dated 12th July 1986 and 5th August 1986.
We have also in the meantime received reports of survey made by several District Judges.
We shall take up these matters for consideration at the next hearing of the writ petition which shall take place on 1.9.1986.

dataset_name: IN-Abs

summary/full:
On 12th July, 1986 this Court issued various directions in regard to the physically and mentally retarded children as also abandoned or destitute children who are lodged in various jails in the country for 'safe custody '.
Giving further directions, HELD: 1.
The right to speedy trial is a fundamental right implicit in article 21 of the Constitution.
If an accused is not tried speedily and his case remains pending before the Magistrate or the Sessions Court for an unreasonable length of time, it is clear that his fundamental right to speedy trial would be violated unless, of course, the trial is held up on account of some interim order passed by a superior court or the accused is responsible for the delay in the trial of the case.
The consequence of violation of the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.
[566E G] Hussainara Khatoon & Ors.
vs Home Secretary, State of Bihar, [ , relied upon 2.
Every State Government must take necessary measures for the 563 purpose of setting up adequate number of courts, appointing requisite number of Judges and providing them the necessary facilities.
It is also necessary to set up an Institute or Academy for training of judicial officers so that their efficiency may be improved and they may be able to regulate and control the flow of cases in their respective courts.
[567B C] 3.
So far as a child accused of an offence punishable with imprisonment of not more than 7 years is concerned, a period of 3 months from the date of filing of the complaint or lodging of the First Information Report is the maximum time permissible for investigation and a period of 6 months from the filing of the charge sheet as a reasonable period within which the trial of the child must be completed.
If that is not done, the prosecution against the child would be liable to be quashed.
Every State Government shall give effect to this principle or norm in so far as any future cases are concerned.
[567E F] 4.
So far as concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, it is directed that every State Government shall complete the investigation within a period of 3 months from today if the investigation has not already resulted in filing of chargesheet and if a chargesheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed.
[567F G] 5.
The State Governments must set up necessary remand homes and observation homes where children accused of an offence can be lodged pending investigation and trial.
On no account should the children be kept in jail and if a State Government has not got sufficient accommodation in its remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail.
[565D E] 6.
Instead of each State having its own Children 's Act different in procedure and content from the Children 's Act in other States, the Central Government should initiate Parliamentary Legislation on the subject, so that there is complete uniformity in regard to the various provisions relating to children in the entire territory of the country.
The Children 's Act which may be enacted by Parliament should contain not only provisions for investigation and trial of offences against children below the age of 16 years but should also contain mandatory provisions for ensuring social, economic and psychological rehabilitation of the children who are either accused of offences or are abandoned or destitute or lost.
[568A G] 564


judgement:
Civil Appeal No. 1243 of 1972 From the Judgment and Decree dated 23.2.1970 of the Allahabad High Court in Writ Petition No. 3958 of 1968.
S.M. Ashri, Ramesh Kumar Khanna, R.A. Mishra and N.N.Sharma for the Appellant.
Gopal Subramaniam and Mrs. Shobha Dikshit for the Res pondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The appellant was working as an Addi tional District and Sessions Judge in the State of Uttar Pradesh in the year 1968.
His date of birth was April 1, 1913.
He would have retired from service on the expiry of March 31, 1971 on completing 58 years of age.
But on September 3, 1968 the appellant was served with an order dated August 24, 1968 issued by the Secretary to the Government of Uttar Pradesh (Home Department) stating that the Governor of Uttar Pradesh in exercise of the powers under para (i) of the first proviso to clause (a) of Fundamental Rule 56 contained in the Financial Hand Book, Volume II, Parts II to IV, as amended from time to time, had been pleased to order that the appellant should retire from service on the expiry of three months from the date of service of the notice.
Aggrieved by the said notice of premature retirement, the appellant filed Writ Petition No. 3958 of 1968 before the High Court of Allahabad under Article 226 of the Constitution urging inter alia (i) that the retirement of the appellant as per order dated August 24, 1968 had been ordered without the recommendation of the High Court as required by Article 235 of the Constitution, (ii) that Fundamental Rule 56 under which the impugned order had been issued was violative of Articles 14 and 16 of the Constitution, and (iii) that the appellant 's premature retirement was in violation of Article 311 (2) of the Constitution.
The question relating to the validity of Fundamental Rule 56 was involved in two other cases which were pending before the High Court The Writ Petition filed by the appellant and the other two writ petitions were heard together by a Division Bench of the High 432 Court.
The Division Bench referred all the three matters to a Full Bench to consider two specific questions of law, namely (i) whether under Fundamental Rule 56 the age of superannuation was 55 or 58 years and (ii) whether the proviso to clause (a) of Fundamental Rule 56 violated Articles 14 and 16 of the Constitution.
Thereafter the Full Bench heard all the three cases and answered the two questions as follows: (i) Under clause (a) of Fundamental Rule 56 the age of superannuation was 58 years and (ii) Paragraph (i) of the proviso to clause (a) of the Fundamental Rule 56 violated Articles 14 and 16 of the Constitution.
The judgment of the Full Bench was pronounced on September 26, 1969.
Immediately thereafter the Governor of Uttar Pradesh issued an ordinance dated November 5, 1969 making amendments to Fundamental Rule 56 and validating actions already taken there under.
The ordinance was replaced by U.P. Act No. 5 of 1970 on April 1, 1970.
The appellant sought the amendment of the Writ Petition questioning the validity of the ordinance and the Act.
Thereafter the Writ Petititon was heard by a Division Bench of the High Court and it came to be dismissed on February 23, 1970.
This appeal by certificate is filed against the judgment of the High Court.
In this case we are not concerned much with the validity of Fundamental Rule 56 since it can be disposed of on the ground based on Article 235 of the Constitution The undisputed facts as can be gathered from the records in this case which are relevant for purposes of this appeal are these.
The State Government moved the High Court in the year 1967 for the premature retirement of the appellant.
On July 8, 1968 the Administrative Judge agreed with the proposal of the State Government to retire the appellant prematurely after giving him three months ' notice.
The Governor passed the order of retirement on August 24, 1968.
Three days there after, on August 27, 1968 the Administrative Committee of the High Court gave its approval to the recommendation of the Administrative Judge earlier communicated to the State Government.
Thereafter on August 30, 1968 the Additional Registrar transmitted the order of retirement to the appellant.
It was actually served on September 3, 1968.
The question for consideration in this case is whether the order of compulsory retirement passed against the appellant satisfies the requirements of the Constitution.
Article 235 of the Constitution provides that the control over district courts and courts subordinate thereto including the posting and 433 promotion of and the grant of leave to persons belonging to the judicial service of the State and holding any post inferior to the post of District Judge shall be vested in the High Court.
It has been held in State of Uttar Pradesh vs Batuk Deo Patil Tripathi & Anr,.
that premature retirement of Judges of District Courts and of subordinate courts is a matter which falls squarely within the power of control vested in the High Courts by Article 235 of the Constitution.
Without the recommendation of the High Court it is not open to the Governor to issue an order retiring prematurely Judges of District Courts and of subordinate courts.
Insofar as the High Court of Allahabad is concerned rules are framed under Article 225 of the Constitution and all other powers enabling it in that behalf by the High Court regarding the manner in which the administrative work of the High Court should be carried out.
They are known as Rules of Court, 1952.
The relevant rules are found in Chapter III of the Rules of Court, 1952.
The material part of Chapter III is set out below: "CHAPTER III Executive and Administrative Business of the Court 1.
Subject to these Rules, a Committee of Judges com posed of the Chief Justice, the Judge in the Administrative Department and five other Judges to be appointed by the Chief Justice, referred to in these Rules as the Administrative Committee, shall act for the Court.
The Chief Justice shall have the charge of, and may act for the Court in the Administrative Department and the executive and administrative business pertaining to the Court, except that the Judge in the Administrative Department shall have charge of, and may act for the Court in the Administrative Department and the executive and administrative business pertaining to the Courts subordinate to the Court.
As far as possible, the Judge in the Administrative Department shall discharge his duties and functions in consultation with the Inspection Judges concerned, who shall be appointed by the Chief Justice from time to time.
The membership of the Committee shall be for two years except in the case of the Chief Justice and the Judge in the Administrative Department.
H 434 2.
From time to time and as occasion arises the Chief Justice shall nominate one of the Judges to act as the Judge in the Administrative Department, whose term of office shall be three years unless renominated.
All executive and administrative business and all business in the Administrative Department requiring orders . . shall be submitted by the Registrar to the Chief Justice or the Judge in the Administrative Department, as the case may be, together with his comments thereon, if any, and may, subject to these Rules, be disposed of by that Judge.
The Judge in the Administrative Department shall, be fore passing final orders cause to be circulated for the information of the Judges of the Administrative Committee then present in Allahabad, his recommendations as to the appointment, promotion or suspension of judicial officers.
Should any Judge dissent from such recommenda tions, he shall signify his dissent and his reasons therefor in writing.
In regard to the following matters the Judge in the Administrative Department shall consult the Administrative Committee either by circulating the papers connected with the matter together with his own opinion or recommendation thereon to the members of the Committee then present in Allahabad or by laying it before a meeting of the Administrative Committee, namely: (a) the issue of General Letters to subordinate courts; (b) the issue of directions regarding the preparation of returns and statements: (c) all matters of importance upon which the Government desires the opinion of the Court; (d) appointment of the U.P. Higher Judicial Service; and (e) any other matter which the Chief Justice or the Judge in the 435 Administrative Department may consider fit to be laid before it for A consideration.
(2) Copies of all General Letters issued to subordinate courts shall be circulated to all Judges for information as soon as may be after issue . . .
B (7) As soon as the Administrative Committee has disposed of any businees, a statement showing what matters were laid before the Committee and the manner in which they were disposed of shall be circulated for information to all Judges except such Judges as may be on leave.
" In the above decision State of Uttar Pradesh vs Batuk Deo Patil Tripathi & Anr.
(supra) this Court has held that the power of the High Court under Article 235 of the constitution to make recommendation to the Government to retire a subordinate judicial officer prematurely could be exercised by the Administrative Committee of the High Court.
In the instant case it is seen that the Administrative Committee of the High Court came into the picture only after the State Government had passed the order of retirement.
It was no doubt true that the Administrative Judge had agreed with the proposal of the State Government to retire the appellant prematurely on July 8, 1968 and that on the basis of the opinion expressed by the Administrative Judge the Governor had passed the order on August 24, 1968.
It was only on August 27, 1968 the order of the Governor was placed before the Administrative Committee of the High Court when it gave its approval to the opinion of the Administrative Judge earlier communicated to the State Government.
After the Administrative Committee had expressed its opinion the matter was not again referred to the Governor at all.
After the Administrative Committee had approved the opinion of the Administrative Judge the order of retirement was served on the appellant on September 3, 1968.
It is thus seen that the Governor had not acted in the instant case on the basis of the recommendation of either the Full Court or of the Administrative Committee of the High Court but only on the opinion of the Administrative Judge.
G The two learned Judges who finally heard the Writ Petition of the appellant dealt with the question of compliance with Article 235 of the Constitution in the two separate judgments delivered by them.
Both the learned Judges, we regret to say, missed the essence of the question agitated before them.
They have referred to Article 233 of the 436 Constitution in the course of their judgments while the proper Article which arose for consideration before them was Article 235 of the Constitution Both the learned Judges have taken the view that the Governor is only expected to consult the High Court on the question when he proposes to make an order of premature retirement in respect of a District Judge or a subordinate judicial officer.
They have overlooked that the Governor can pass such an order only on a recommendation made by the High Court or the Administrative Committee.
The second error committed by both of them is that they have held that such consultation with the High Court is permissible even after the Governor has passed the order of compulsory retirement.
Thirdly, they have equated the recommendation that should be made by the High Court before a judicial officer can be prematurely retired to the consultation contemplated under Article 320(3)(c) of the Constitution, which provides that the Union Public Service Commission or the State Public Service commission as the case may be, shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters, and have held relying upon a decision of this Court in State of U.P. vs Manbodhan Lal Srivastava; , that such consultation was not mandatory and that failure to do so did not afford a cause of action to the appellant in a court of law In Stale of Haryana vs Inder Prakash Anand H.C.S. & ors., [1976] (Supp) S.C.R. 603, this Court has held that Article 235 of the Constitution vests in the High Court control over district courts and courts subordinate thereto.
This "control" includes both disciplinary and administrative jurisdiction.
Disciplinary control means not merely jurisdiction to award punishment for misconduct, but also the power to determine whether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation.
Administrative, judicial and disciplinary control over members of the judicial service is vested solely in the High Court.
Premature retirement is made in the exercise of administrative and disciplinary jurisdiction.
It is administrative because it is decided in public interest to retire him prematurely and it is disciplinary, because, the decision is taken in public interest that he does not deserve to continue up to the normal age of superannuation.
The fixation of the age of superannuation is the right of the State Government.
The curtailment of that period under rules governing the conditions of service is a matter pertaining to disciplinary as well as 437 administrative control.
The control which is vested in the High Court A is complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal or reduction in rank and the initial posting of and initial promotion to the rank of District Judge.
The vesting of complete control over the subordinate judiciary in the High Court, leads to this that if the High Court is of opinion that a particular officer is not fit to be retained in service, the High Court will communicate that opinion to the Governor, because, the Governor is the authority to dismiss, remove or reduce in rank or terminate the appointment.
In such cases, the Governor, as the head of the State, will act in harmony with the recommendation of the High Court as otherwise the consequences will be unfortunate.
But, compulsory retirement simpliciter does not amount to dismissal or removal or reduction in rank under Article 311 or under service rules.
When a case is not of removal or dismissal or reduction in rank, any order in respect of exercise or control over the judicial officers is by the High Court and by no other authority otherwise, it will affect the independence of the judiciary.
It is in order to effectuate that high purpose that Article 235 of the Constitution, as construed by this Court in various decisions, requires that all matters relating to the subordinate judiciary including premature retirement and disciplinary proceedings but excluding the imposition of punishment falling within the scope of Article 311 of the Constitution and the first appointment on promotion should be dealt with and decided upon by the High Courts in exercise of the control vested in them .
In High Court of Andhra Pradesh and ors.
vs V.V.S. Krishnamurity and ors.
, this Court has again observed that Article 235 of the Constitution is the pivot around which the entire scheme of the Chapter VI of Part VI of the Constitution revolves.
Under it the control of district courts and courts subordinate thereto including the posting and promotions of and the grant of leave to persons belonging to the judicial service of a State is vested in the High Court.
After considering a number of decisions, the Court in that case has set out the true legal position crystalized by the said decisions as regards the scope of the control of the High Court over the subordinate judiciary vested in it under Article 235 of the Constitution.
The Court proceeded to observe that the said power under Article 235 of the constitution was exclusive in nature, comprehensive in extent and effective in operation.
Amongst the several matters which fell within its scope, this Court was of the view that premature retirement of Judges of the district courts and of the subordinate courts was one.
H 438 It is thus clear that the High Court was in error in not construing the applicability, and the scope, of Article 235 of the Constitution while deciding the case before it.
It assumed that the Governor after consulting the High Court could pass an order of premature retirement in respect of a District Judge or a subordinate judicial officer and that even if he did not consult in that regard the order of premature retirement passed by the Governor would not be vitiated and that in any event it was an irregularity which could be cured by rule 21 of the Court Rules, 1952.
The relevant passages in the judgments of the two learned Judges who decided the case in the High Court are given below: "(Per D.S. Mathur, J.) In the case of premature retirement, consultation, if made subsequently, but before the officer actually retires, that is, hands over charge, cannot in each and every case be said to be illusory and not genuine.
It is only when it appears that after the passing of the order of compulsory retirement, the High Court did not consider the matter on merits but accepted the fait accompli, it can be said that there had been no consultation as contemplated by Article 233(1); but where the High Court did consider the matter on merits and agreed with the order passed by the Governor directing the compulsory retirement of a judicial officer, there would be no defect, considering that the order of retirement shall take effect from the date of communication or from the date the government servant is to retire from service.
In the instant case, three months ' notice was given, that is, the officer was to retire from service on the expiry of three months from the date of comunication of the order of retirement.
Within this period the matter could be considered on merits by the High Court on its own or on a representation made by the officer.
We are, therefore, of opinion that the consultation of the High Court cannot be declared invalid simply because there was no proper and full consultation before the passing of the order of premature retirement, provided that the facts and circumstances of the case made it evident that the High Court had not been unduly influenced by the decision of the Governor and the High Court had on its own and independently considered the matter on merits.
439 Reference may now be made to rule 21 of Chapter Ill A of the Rules of Court, which clearly provides that no irregularity in, or omission to follow, the procedure laid down in this Chapter shall effect the validity of any order passed or anything done under these rules.
This rule cannot cover a case where any order was passed in complete disregard of the rules contained in Chapter III: but an irregularity committed in good faith shall not invalidate the order.
The principles governing the provisions like section 5 of the Limitation Act can easily be made applicable to a case of the present nature.
Where two opinions are possible, the irregularity, if any, cannot be deemed to have been committed in bad faith and such irregularities shall be covered by the above rule 21. "(Per Satish Chandra, J.) Under Chapter III rule 5 the Administrative Judge had to consult the Administrative Committee.
Even if the consultation takes place subsequently, if the committee approves of the action of the Administrative Judge, then the original action would be valid and effective with effect from its own date.
In this view, the communication of the Court 's opinion on the 8th July, 1968 would be valid.
E Even if it be assumed that the communication of 8th July, 1968 did not satisfy the requirements of law, still the petitioners have not made out a case for interference.
It has been seen that the Administrative Committee took the decision on the 28th August, 1968.
By then the Governor had considered the opinion of the Court as sent to it on the 8th July, 1968.
The Governor sent the order of compulsory retirement to the High Court.
The High Court transmitted it for service on the petitioners on or about the 2nd September, 1968, much after the Administrative Committee had approved the proposal.
The order was served on the petitioners on 3rd September, 1968.
Thus before the order of compulsory retirement came into force on 3.9.1968, all the requisite requirements of Article 233 of the Constitution had been completed.
In this situation.
rule 21 would come into play and would cure whatever irregularity took place in following the procedure laid down in Chapter III 440 of the Rules of the Court.
The impugned order cannot be held to have violated Article 233 of the Constitution.
" We do not approve of the above opinions of the learned Judges of the High Court.
Now, it is settled by the decision of this Court in State of Uttar Pradesh vs Batuk Deo Patil Tripathi & Anr.
(supra) that on a true construction of the rules of business of the Allahabad High Court it was open to the Administrative Committee to recommend to the Governor to pass an order of compulsory retirement in respect of a District Judge or a subordinate judicial officer.
We need not, therefore, go into the question whether the Full Court alone should have considered the case of the appellant before such recommendation was made.
In the instant case as we have already stated above, the Administrative Committee came to know of the order of premature retirement already passed by the Governor only after it had been passed on the basis of the opinion expressed previously by the Administrative Judge.
The Rules of Business in Chapter III of the Rules of Court, 1952, referred to above, show the powers which are exercisable by the Full Court, the Chief Justice, Judge in the Administrative Department (Administrative Judge) and the Administrative Committee of the High Court.
Rule 3 of Chapter III of the Rules lays down that all executive and administrative business and all business in the Administrative Department requiring orders shall be submitted by the Registrar to the Chief Justice or the Judge in the Administrative Department, as the case may be, together with his comments thereon, if any and may be subject to these Rules disposed of by that Judge.
Rule 4 provides that the Judge m the Administrative Department shall before passing final order, cause to be circulated for the information of the Judges of the Admimstrative Committee then present in Allahabad, his recommendations as to the appointment, promotion or suspension of judicial officers, and that should any Judge dissent from such recommendations, he shall signify his dissent and his reasons therefore in writing.
Rule 5 provides that in regard to the matters set out thereunder the Judge in the Administrative Department shall consult the Administrative Committee either by circulating the papers connected with the matter together with his own opinion or recommendation thereon to the members of the Committee then present in Allahabad or by laying it before a meeting of the Administrative Committee and one of the items mentioned in clause (c) of rule 5(1) of the Rules is 'all matters of importance upon which the Government desires the opinion of the 441 Court. ' In the instant case the Government had sought the opinion of A the High Court regarding the question whether the appellant could be prematurely retired and that question was certainly a very important matter from the point of view of the subordinate judicial service.
The Administrative Judge before giving his opinion in support of the view expressed by the Government should have either circulated the letter received from the Government amongst the members of the Administrative Committee or placed it before them at a meeting.
He did not adopt either of the two courses.
But he on his own forwarded his opinion to the Government stating that the appellant could be prematurely retired.
That he could not do.
Ordinarily, it is for the High Court, on the basis of assessment of performance and all other aspects germane to the matter to come to the conclusion whether any particular judicial officer under its control is to be prematurely retired and once the High Court comes to the conclusion that there should be such retirement, the Court recommends to the Governor to do so.
The conclusion is to be of the High Court since the control vests therein.
Under the Rules obtaining in the Allahabad High Court, the Administrative Committee could act for and on behalf of the Court but the Administrative Judge could not have.
Therefore, his agreeing with the Government proposal was of in consequence and did not amount to satisfaction of the requirement of Article 235 of the Constitution.
It was only after the Governor passed the order on the basis of such recommendation, the matter was placed before the Administrative Committee before the order of retirement was actually served on the appellant.
The Administrative Committee may not have dissented from the order of the Governor or the opinion expressed by the Administrative Judge earlier.
But it is not known what the Administrative Committee would have done if the matter had come up before it before the Governor had passed the order of premature retirement.
In any event the deviation in this case is not a mere irregularity which can be cured by the ex post facto approval given by the Administrative Committee to the action of the Governor after the order of premature retirement had been passed.
The error committed in this case amounts to an incurable defect amounting to an illegality.
We may add that while it may be open to the Government to bring to the notice of the High Court all materials having a bearing on the conduct of a District Judge or a subordinate judicial officer? which may be in its possession, the Government cannot take the initiative to retire prematurely a District Judge or a subordinate judicial officer.
Such initiative should rest with the High Court.
Under the circumstances, it has to be held that the impugned 442 order of premature retirement passed by the Governor without having before him the recommendation of the Administrative Committee or of the Full Court is void and ineffective.
We, therefore, set aside the judgment of the High Court and quash the order of premature retirement passed in respect of the appellant.
He shall be treated as having been in service until the expiry of 31.3.1971 when he would have retired from service on attaining 58 years of age.
We are informed that the appellant has died on 27.11.1983 and his legal representatives have been brought on record.
The arrears of salary, pension etc.
payable to the appellant on the above basis till 27.11.1983 shall, therefore, be paid to the legal representatives of the appellant within four months from today.
This appeal is accordingly allowed.
The legal representatives of the appellant are also entitled to the costs in both the Courts.
P.S.S. Appeal allowed.

summary/full:
The appellant was working as an Additional District and Sessions Judge in the State of Uttar Pradesh.
The State Government moved the High Court in the year 1967 for his premature retirement.
On July 8, 1968 the Administrative Judge agreed with the proposal to retire the appellant after giving him three months notice.
The Governor passed the order of retirement on August 24, 1968.
Three days thereafter, on August 27, 1968 the Administrative Committee of the High Court gave its approval to the opinion of the Administrative Judge earlier communicated to the State Government.
Thereafter, on August 30, 1968 the additional Registrar transmitted the order of retirement to the appellant.
The order was purported to be made under para (i) of the first proviso to cl.
(a) of Fundamental Rule 56.
Aggrieved by the said order the appellant filed a writ petition before the High Court alleging: (i) that the retirement bad been ordered without the recommendation of the High Court as required by Article 235 of the Constitution; (ii) that Fundamental Rule 56, under which the order had been issued was violative of Articles 14 and 16, and (iii) that the premature retirement was in violation of Article 311(2).
As the question relating to the vires of Fundamental Rule 56 was 429 pending before the High Court in two other writ petitions, the three A matters were referred to a Full Bench.
which held that paragraph (i) of the proviso to cl.
(a) of Fundamental Rule 56 was violative of Articles 14 and 16.
Immediately thereafter the Governor issued an ordinance amending Fundamental Rule 56 and validating actions already taken Ihereunder.
The appellant thereupon sought amendment of his writ petition questioning the validity of the ordinance and the U.P. Act No. 5 of 1970 which replaced the ordinance.
Dismissing the writ petition the High Court took the view that whenever the Governor proposed to make an order of premature retirement in respect of a District Judge or a Subordinate Judicial officer he was only expected to consult the High Court on the question and that this consultation with the High Court was permissible even after the Governor had passed the order of compulsory retirement.
It equated the recommendation that should be made by the High Court under Article 235 before a judicial officer can be prematurely retired to the consultation contemplated under Article 320(3) (c) in respect of disciplinary matters affecting civil services and held that such consultation with the High Court was not mandatory and that failure to do so did not afford a cause of action in a court of law.
On the question: whether the order of compulsory retirement passed against the appellant satisfies the requirements of the Constitution.
Allowing the appeal, the Court, ^ HELD: l.
The impugned order of premature retirement passed by the Governor on the opinion of the Administrative Judge without having before him the recommendation of the Administrative Committee or of the Full Court was void and ineffective.
The High Court was in error in not construing the applicability and scope of Article 235 of the Constitution while deciding the case.
2.1 Without the recommendation of the High Court it is not open to the Governor to issue an order retiring prematurely Judges of District Courts and the subordinate courts.
2.2 While it may be open to the Government to bring to the notice H 430 of the High Court all materials having a bearing on the conduct of a District Judge or a subordinate judicial officer, which may be in its possession, the Government cannot take the initiative to retire prematurely a District Judge or a subordinate judicial officer.
Such initiative should rest with the High Court.
2.3 It is for the High Court, on the basis of assessment of performance and all other aspects germane to the matter to come to the conclusion whether any particular judicial officer under its control is to be prematurely retired and once the High Court comes to the conclusion that there should be such retirement, the Court recommends to the Governor to do so.
The conclusion is to be of the High Court since the control vests therein.
In the instant case, the Government had sought the opinion of the High Court regarding the question whether the appellant could be pre maturely retired.
Under the rules obtaining in the Allahabad High Court the Administrative Committee could act for and on behalf of the Court but the Administrative Judge could not.
Before giving his opinion in support of the view expressed by the Government the Administrative Judge should have either circulated the letter received from the Government amongst the members of the Administrative Committee or placed it before them at a meeting.
He did not adapt either of the two courses but on his own forwarded his opinion to the Government stating that the appellant could be prematurely retired.
It was only after the Governor had passed the order on the basis of such recommendation that the matter was placed before the Administrative Committee.
Therefore, the Administrative Judge agreeing with the Government proposal was of no consequence and did not amount to satisfaction of the requirement of Article 235 of the Constitution.
The deviation in this case is not a mere irregularity which can be cured by the ex post facto approval given by the Administrative Committee to the action of the Governor after the order of premature retirement had been passed.
The error committed in this case amounts to an incurable defect amounting to an illegality.
State of Uttar Pradesh vs Batuk Deo Patil Tripathi & Anr., ; State of Haryana vs Inder Prakash Anand H.C.S. & Ors., [1976] (Supp) S.C.R. 603; High Court of Andhra Pradesh & ors.
vs V. V.S. Krishnamurthy and Ors., referred to.
431 State of U.P. vs Manbodhan Lal Srivastava, ; , distinguished.