National Anthem : Stand or not to Stand !

Graphics Courtesy : Shuvojit Moulik

Graphics Courtesy: Shuvojit Moulik

To be or not be that is the question. And Judiciary will question your patriotism if the you do not stand during the time when National Anthem is played in cinema halls.

The Supreme Court has directed all the cinema halls in India to play National Anthem before the movie starts and the people present in the movie hall are required to stand when the National Anthem is being played.

The Supreme Court under Article 32 of the Constitution admitted a Special Leave Petition filed by a patriotic individual and after hearing the Apex Court passed the judgment to that effect.

 As we know, The Indian Constitution is the Magna Carta and interestingly nowhere in the said document, patriotism and/ or Nationalism is defined or elaborated. In fact, no statute define the term Patriotism and/ or Nationalism. The Supreme Court of India has always been a torchbearer for progressiveness and the same was reflected time and again in plethora of judgments over the years. Unfortunately, in the current times, the judiciary is over stepping the parameters of Judicial Activism and transgressing the invisible threshold and the charm of progressiveness is reduced to mere statements.

In the year 1986, the Apex Court in Bijoe Emmanuel vs. State of Kerala as reported in 1987 All India Reporter Supreme Court Page 748, upheld that not singing National Anthem would not classify someone as unpatriotic. The facts of this case in a nutshell- a group of students in a school in Kerala were followers of Jehovah’s Witness. The school in Kerala as a part of their activity used to sing National Anthem. When the National Anthem was being played those few students did not sing the National Anthem but however they stood up. The school authorities expelled those students from the school, citing that they disrespected the National Anthem.  In this particular case the “Prevention of Insults to National Honour Act, 1971” was taken into consideration. The Supreme Court in this case further held that the fundamental right of worship/freedom to practice religion of those students was being jeopardized and accordingly the expel order by the school authorities was quashed.

The intention of the legislature behind enacting this piece of legislation (i.e. Act of 1971) is vivid that the Indian citizens should respect the National Flag and / or the National Anthem and should not make any mockery, which is absolutely legit and reasonable.  This Act of 1971 (as amended upto date) lays down certain criteria or acts which if violated would attract punishment.  Section 2, of the Act of 1971 deals with insult to the Indian National Flag and the Constitution of India while Section 3 deals with the punishment. Both these sections are laid below respectively:-

Picture Courtesy : Frontline

Picture Courtesy : Frontline 

  1. INSULT TO INDIAN NATIONAL FLAG AND CONSTITUTION OF INDIA

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

Explanation 1 – Comments expressing disapprobation or criticism of the Constitution or of the Indian National Flag or of any measures of the Government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute an offence under this section.

Explanation 2 – The expression, “Indian National Flag” includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag, or of any part or parts thereof, made of any substance or represented on any substance.

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

*Explanation 4 – The disrespect to the Indian National flag means and includes—

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

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

(c) flying the Indian National Flag at half-mast except on occasions on which the Flag is flown at half-mast on public buildings in accordance with the instructions issued by the Government; or 2

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

(e) using the Indian National Flag:-

(i) as a portion of costume, uniform or accessory of any description which is worn below the waist of any person; or

(ii) by embroidering or printing it on cushions, handkerchiefs, napkins, undergarments or any dress material; or

(f) putting any kind of inscription upon the Indian National Flag; or

(g) using the Indian National Flag as a receptacle for receiving, delivering or

carrying anything except flower petals before the Indian National Flag is unfurled as part of celebrations on special occasions including the Republic Day or the Independence Day; or

(h) using the Indian National Flag as covering for a statue or a monument or a speaker’s desk or a speaker’s platform; or

(i) allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally; or

(j) draping the Indian National Flag over the hood, top, and sides or back or on a vehicle, train, boat or an aircraft or any other similar object; or

(k) using the Indian National Flag as a covering for a building; or

(l) intentionally displaying the Indian National Flag with the “saffron” down.

Screen Shot 2017-02-15 at 10.30.57 PM

Picture Courtesy: BBC

3Whoever 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.”

If we momentarily divert our attention to Article 51 A of the Indian Constitution, it says the following:-

51A. Fundamental duties – It shall be the duty of every citizen of India

(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.”

Hence a conjoint reading of the above, it becomes comprehensible that the Indian Constitution nowhere defines Nationalism/Patriotism neither does it direct that citizens have to stand up during the National Anthem. It is out of a moral obligation, out of free will and respect that a citizen stands up when the Indian National Anthem is being played. In other words ‘standing up’ is more of a respectful gesture which is pari passu with respect.

In the 2016 judgment, the Supreme Court misinterpreted the word ‘respect’ which is more of natural phenomena with directed / forceful respect. There was a point of time when National Anthem were being played cinema halls at the end of the screening of movie and people present there used to stand up without any force/directions from any authority of law. After a few years this practice stopped (emphasis is laid on practice) but that, in no way, deterred the citizens from showing respect to their motherland.

Now coming back to the present times an excerpt from the said 2016 judgment is reproduced here as follows

Picture Courtesy : Indian Express

Picture Courtesy : Indian Express

“…This Court on 28.10.2016 while entertaining the Writ

Petition under Article 32 of the Constitution of India had

noted the submissions advanced by the learned counsel for the

petitioner, made reference to the enactment, namely, Prevention

of Insults to National Honour Act, 1971. It had also taken note

of the averments in the petition.

It has been averred in the petition that sometimes

National Anthem is sung in various circumstances which are not

permissible and can never be countenanced in law. The emphasis

is on showing requisite and necessary respect when the National

Anthem is sung or played. The assertion is that it is the duty

of every person to show respect when the National Anthem is

played or recited or sung.

At the outset it may be inferred that only one public spirited individual ‘has brought to the notice of the Apex Court that National anthem is being played in various circumstances which are not permissible and can never be countenanced in law’. A question comes to my mind that what is the parameter of a permissible limit?

For example, sometime back a version of National Anthem was sung by a group of hearing and speech impaired students and also another version was sung portraying the Indian Army stationed at the Siachen Glacier (https://youtu.be/UdwNnYPKkQE) and in both of these versions of National Anthem there was no iota of anti-patriotism/disrespect to our Motherland. On the contrary, it may so happen that one individual stands up when the National Anthem is being played but his heart is filled with hatred for his country. Can that be addressed? In other words, it is the intention which matters most and not the act of standing up or being seated.

Picture Courtesy : Justin's political corner !

Picture Courtesy: Justin’s political corner!

Discussing the latter part of the judgment which is reproduced below:-

“…Having heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is directed that the following directions shall be

scrupulously followed:-

(a) There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.

(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.

(d) 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.

(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.

(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

We have so directed as Mr. Mukul Rohtagi, learned Attorney General for India submits with all humility at his command and recommend that National Anthem has to be respected. The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.

In this regard, we may refer to clause (a) of Article 51(A), Fundamental Duties occurring in Part IVA of the Constitution. It reads as follows:

“51A. Fundamental duties – It shall be the duty of every citizen of India –

(a) to abide by the Constitution and respect its ideals and institutions, the National

Flag and the National Anthem”.

From the aforesaid, it is clear as crystal that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag. Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible”.

With all respect, the Apex Court has transgressed that arena of judicial interpretation and judicial command. In this case, the Judiciary has overstepped and like an authoritarian has passed strictures to the people of the nation to stand when the Anthem is being played at cinema halls.

There may be another facet to this. When a person goes to a movie hall, it is mainly for the fun and frolic, an escape from the mundane routine. The people present there are mostly in a non-serious mindset and just because there is a direction from the Apex Court  they have to stand while the National Anthem in being played. Mentally they are least interested and deep down the person wants the National Anthem to get over soon. In other words, just for the sake of standing and paying respect they are artificially paying respect just because they are bound to do so with a fear instilled in their mind that there might face a Contempt of Court or moral policing for enforcement of such order.   Hence, the rationality in passing such judgment is greatly omitted and moreover in this Judgment the Judiciary is teaching respect in an austere manner and not out of natural love and affection.

The Apex Court in the 2016 judgment has further directed that while the National Anthem is being played the flag should be displayed on the screen. The Apex Court has also specified the National Flag be hoisted in a particular manner which is again illogical.

Many legal luminaries while having discussing this judgment indicated  the manner in which this Judgment is going to be implemented is an area of concern.

It may be pertinent to mention here that another petition was moved before the same bench where the petitioner prayed that National Anthem be played in the Court but that was rejected. A question may crop up as to why only cinema halls are under the ambit of the National Anthem debate and why not public places. Even if assuming for the sake of arguments- the Supreme Court directed that during a particular convenient time the National Anthem would be played throughout the Nation and the same would have been more logical and rational.

Picture Courtesy : Outlook

Picture Courtesy : Outlook

Fascinatingly, Supreme Court, in an intervening application preferred by Kodungallur Film Society wherein the Apex Court (Bench headed by Justice Hon’ble Mr. Justice Dipak Misra And Hon’ble Mrs. Justice R. Banumathi) has clarified that no one needs to stand up when the National Anthem is played which is part of the film and / or any documentary and there would not be any sort of moral policing.

(http://www.livelaw.in/not-must-to-stand-up-when-anthem-played-in-a-movie-sc/)

Seems that Indian Judiciary is in a dichotomy, none the less, as citizens of this country we still have faith in the Indian judiciary that in the coming times the judiciary will look into the broader aspect of people and their rights and guarantee that the basic rights of people are given to them and the spirit of the Constitution and democracy would truly be upheld. We are also optimistic that Equality be practiced in the truest sense and Judiciary comes out of closet.

Graphic Courtesy : Shuvojit Moulik

Graphic Courtesy : Shuvojit Moulik

 

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Edited By: Kaushik Gupta,  Lawyer, Calcutta High Court 

 

About the Author

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 Soumi Guha Thakurta

Soumi graduated from Department of Law, University of Calcutta. She is an advocate at Calcutta High Court  and pursuing Post -Graduate Diploma in Human Rights. She likes to study and research.

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