Vasudev Sharan
National newspapers recently carried headlines stating, 14 persons were proceeded against by the Jammu and Kashmir police in Srinagar under section 107 and 151 of CrPC (provisions for good behaviour and keeping peace through preventive arrest) for disrespecting the National Anthem by not standing up in a public event on June 25, 2023. Ms Mamta Banerjee continues to face legal proceedings in Mumbai for a similar misdemeanour in an event held in January, 2022 at Yashwantrao Chavan Auditorium at Cuffe Parade. She had allegedly sung the anthem while sitting and stood up towards the end and abruptly left the venue. In April 2023, two Kolkata girls were booked in an FIR for mocking the national anthem. They sang the anthem casually while smoking cigarettes.
The legal position on ‘what constitutes disrespect to the National Anthem?’ has evolved over time.
Post-independence, the earliest litigation dates back to 1986. In Bijor Emmanuel v. State of Kerela, the Supreme Court adjudicating on an incident wherein the headmistress of a school expelled three ‘Jehovah’s Witnesses’ students who did not sing the National Anthem though they stood up during the singing. Justices O. Chinnappa Reddy and M. M. Dutt, the presiding judges, ruled that the fundamental rights of the expelled students as guaranteed under Article 19(1)(a) and 25(1) had been infringed. Article 19(1)(a): all citizens shall have the right to freedom of speech and expression. Article 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. The court further held that, “by involving conscientious objection based on Article 25, the negative of other fundamental rights can be asserted all the more against the laws and mandates of the state”. Here the court invoked the concept of ‘negative right jurisprudence’. Conventional understanding is that individual citizens have certain rights and freedoms in the nature of what they want to do, speak, practice, profess etc. The ‘negative right jurisprudence’ goes a step further and asserts that this set of rights and freedoms also includes what they don’t want to do, and don’t want to speak (in other words, remain silent) etc. For instance, right to life, worldwide, is conventionally a constitutionally protected individual right in most liberal democracies. But right to end one’s life through euthanasia or fasting unto death could be an equally valid fundamental right courtesy ‘negative right jurisprudence’. In this discussion, the court essentially indicated that right not to sing the National Anthem could be construed as a part of fundamental right under Article 25(1).
The court in this case approached the issue from another angle as well: fundamental rights versus fundamental duties vide Article 51-A(a). “It is true Art. 51A(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”, said the court. But Justice Chinnappa also added, “we may at once say that there is no provision of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing”. The court summed up by positing, “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”.
A contextual understanding of the judgment would reveal that the court was attempting to define what would be reasonable and what not as regards respect and disrespect to the National Anthem. The court felt that standing up was a desirable act but penalising ‘not singing’ is unreasonable. To defend this position the court resorted to the invocation of Article 19(1)(a) & 25(1) and also the ‘negative right jurisprudence’. This was the legal position in 1986.
Enter 2003. While deciding a controversy around the way National Anthem was used in a film ‘Kabhi Khushi Kabhi Gham’ the Supreme Court in Shyam Narayan Chouksey v. Union of India (2003) ordered, “whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a news-reel or documentary the Anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the anthem”. In this round, the apex court was more categorical as regards the sanctity and sacredness of the National Anthem. Firstly, it made it mandatory that standing up while National Anthem is played is a must.
Secondly, while it allowed movies and documentaries to include the National Anthem as a part of its screenplay and drama, it cautioned that it cannot be in a manner that is casual and cavalier. The court opined, “…in our considered view that the national anthem has been sung in the movie as if it is a song of advertisement for a commercial purpose. It is absolutely discernible”. It ordered that the scene pertaining to the National anthem either be deleted or amended before it can be screened in theatres and other public platforms. The opinion juris of this judgment is equally relevant and important. The view of the court that, “The national anthem is pivotal and centripetal to the basic conception of sovereignty and integrity of India. It is the marrow of nationalism, hypostasis of patriotism, nucleus of national heritage, substratum of culture and epitome of national honour”.
Thirteen years later, a bench presided over by Justices Dipak Misra and Amitava Roy revisited the National Anthem issue in Shyam Narayan Chouksey v. Union of India (2016). The order was in the form of a charter of dos and don’ts. The most relevant feature applicable for compliance from the standpoint of general public was, “all the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem”. With this, standing up during the play of National Anthem became legally obligatory. The judicial order also included a ban on commercial exploitation, trivialisation through dramatisation, playing of abridged version, printing on objects and disgraceful display of the National Anthem. Further, the order also required for the National Flag to be shown on the screen and that cinema hall’s doors remain closed while the National Anthem was being played.
The last applicable judicial ruling on the subject of respect to the National Anthem is available in Supreme Court ruling in Shyam Narayan Chouksey v. Union of India (2018). Broadly speaking, the Supreme Court reiterated and upheld its 2016 pronouncement with one minor modification: “national anthem prior to the screening of feature films in cinema halls is not mandatory but optional or directory”. The apex court held unambiguously that citizens are bound to show respect as required under executive orders relating to the national anthem of India and the prevailing law whenever it is played or sung on specified occasions. The court also used the opportunity to point out that the existing law (Prevention of Insults to National Honour Act, 1971) is not comprehensive enough to address the issue of ensuring that the National Anthem is duly honoured on all occasions and no scope whatsoever is left for its disrespect. Till such time a more comprehensive law is brought on the statute book through a committee specially constituted for this purpose, the court unequivocally held that its interim directions passed on this subject shall remain in force.
The net position that has the force of law vide the January, 2018 judgement is: “when National Anthem is played or sung, due respect as salutation to motherland should be shown by standing up and proper decorum should be maintained, except where a person is differently abled”. Disobedience of this is punishable through the mechanism of contempt of court. As regards, singing the National Anthem the law remains ambivalent.
The judicial mind, very evidently has undergone a significant change since its first judgment in 1986. Thirty seven years later, the apex court has swung decisively from a directory to a mandatory stance as regards standing up while the National Anthem is being played or sung. This changed judicial mind is also evident in its proactive stance of laying down dos and don’ts to prevent a variety of possible disrespect till a law is passed. A 12-member inter-ministerial committee is working to frame a law on the subject.
Follow our WhatsApp channel
