The author of this post is Mridull Thaplu, a student of Law at Rajiv Gandhi National University of Law, Punjab
Introduction
Over time, there always has been a controversy in Section 3 of the Prevention of Insults to National Honour Act 1971, which prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in such singing. In turn, the people committing the same shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both[1]. However, the issue here is the ambiguity in the word ‘disturbance,’ which is not clear and is being used by people to take undue advantage. There have been many instances when the Indian Judiciary has addressed the issue, but we do not have anything concrete on the said topic. National Anthem and National Symbols are respected throughout the world, As per the United States Code, whenever the national anthem is being played, whether or not the American flag is displayed, all individuals should face the flag/the source of music and stand at attention with the right hand over their hearts[2]. The National anthem, National Flag and National Song are secular symbols of nationhood and represent the supreme collective expression of commitment and loyalty to the nation and patriotism for the country, which is a necessary adjunct of sovereignty being symbols and actions associated with the same[3]. As per Article 51A of the Indian Constitution, “every Citizen of India must abide by the Constitution and respect its ideals and institutions, the National Flags and the National Anthem.”[4]
The Case of Bijoe Emmanuel
“Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.”
These were the memorable words of Hon’ble Mr. Justice Chinnappa Reddy, who headed the Bench in the Bijoe Emmanuel Case. There have been many landmark judgments regarding the disrespect caused to National Symbols, and the Hon’ble Supreme Court has tried to resolve the position on the same through many judgments and orders. One of the breakthroughs was in the case of Bijoe Emmanuel v. Kerala wherein the question of Law was regarding whether protection for mere standing and not singing the national anthem under a religious belief is available under Article(s) 19 (1) (a) and 25 (1) of the Constitution of India. In the instant case, it was held that “though there is no provision of law, which obliges anyone to sing the National Anthem nor it is disrespectful to the National Anthem, if the person stands up respectfully when the National Anthem is sung does not join the singing.” [5] Moreover, it was, inter alia, held that “[s]tanding 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.”[6]
In the instant case, the judgment was delivered in favour of the Petitioners because they obeyed their religious belief, which is protected and enshrined to them by the Hon’ble Constitution of India, and at the same time, by respectfully standing in the assembly, they offered respect to the National Anthem and National Flag.
The Case of Shyam Narayan Chouskey
It is a significant case dealing with inculcating a sense of Patriotism and Nationalism in the citizens through proper respect towards the National Anthem. The case dates back to the year 2003 when the petitioner in the case had gone to watch a film, there was a scene when National Anthem was played in the movie, and as a mark of respect and patriotism, he stood up to show respect; however, he was forced to sit down by people behind him saying that their view was obstructed. This, in turn, offended him, and he filed a Public Interest Litigation in Madhya Pradesh High Court on the question of “commercial use of the national anthem.” The screening of the movie was stopped; however, after approaching the Apex Court, the screening was started after removing the disputed portion in the movie. [7]
Another case was filed by Shyam Narayan Chouskey asking the Apex Court to give proper directions and take appropriate steps in order to inculcate the feeling of Nationalism and a mark of respect towards the National Anthem by the citizens of the country.
As per the Interim order of the Supreme Court on November 30, 2016, it ordered all cinema halls across the country to play the national anthem before the screening of films and that all present must “stand up in respect” till the anthem ended. It said the practice would “instill a feeling within one a sense of committed patriotism and nationalism.”. This created a stir feeling amongst the Indians, and there were diverging views on the same. On the one hand, people said that it is a good step towards inculcating patriotic feeling amongst the masses, whereas critics argued that the Supreme Court had infringed on the Fundamental Rights of the citizens and enforced aggressive Nationalism upon them. Through this judgment, the Hon’ble Court acted in good faith and provided rational reasons and justifications for expressing the love and honor of a citizen towards a country.
However, modifying the Interim order dated November 30, 2016, the Supreme Court, on January 09, 2018, made it optional for cinema halls to play the 52-second national anthem before every show. Hon’ble Supreme Court further stated that every citizen’s sacred obligation is to abide by the ideals engrafted in the constitution. Furthermore, one such ideal is to show respect for the national anthem and National Flag. The citizens of this country must realize that they live in a nation and duty-bound to show respect to the national anthem, which symbolizes constitutional patriotism and inherent national equality[8]. However, patrons in the hall are bound to stand up and show respect if it is played, the specially-abled persons are exempted. “Playing of the anthem is directive, but showing respect is mandatory,” Chief Justice Deepak Misra orally observed, and it left the choice of whether to play the anthem or not to the discretion of individual cinema hall owners. An order was issued in October 2018 by the Ministry of Home Affairs (MHA) stated that “whenever the anthem is played, the audience shall stand to attention.”
Analysis of J&K Case
The Jammu & Kashmir High Court, in a writ petition filed by Tawseef Ahmad Bhat, challenging the registration of an FIR against him under Section 3 of the Prevention of Insult to National Honour Act, has held that while not standing up for the national anthem could be considered ‘disrespect’ to the anthem, it does not constitute an offence under the Prevention of Insults to National Honour Act, 1971.[9]
Under Para 17, The court said that respect to the national anthem is one of the fundamental duties enumerated under the constitution of India, but these duties are not enforceable by Law, nor is the breach of such duties an offence under any penal law of the State.
As per Section 3 of the Prevention of Insults to National Honour Act 1971, whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in such singing shall be punished, and while referring to this section[10], the court under Para 18 commented that “It is the conduct that prevents the singing of the National Anthem or that causes disturbance in the assembly engaged in such singing, that is declared as an offence under Section 3 of the Act.”
Since there is an ambiguity present and the position on Section 3 of the Act is unclear, there are no directions or orders passed till date by Hon’ble Apex Court or the Ministry of Home Affairs, highlighting what all can be constituted as Offence u/s 3 of the Act.
In 2019, a Member of Parliament from BJP, namely Parvesh Verma, introduced a Private Members’ Bill, which was not passed, and it was introduced to clear the position of Section 3. It aimed to add an Explanation to the said section, which was “For the purposes of this section, the word “disrespect” shall include any person refusing to stand for or recite the National Anthem except when such person is suffering from any physical disability in that regard.” It is mentioned under Para 19 of the Judgement.
If the instant case is to be seen, it is nowhere mentioned that the petitioner caused disturbance or prevented the singing of the National Anthem. Hence, it will not attract the punishment u/s 3 of the Act, and the reasoning and points laid down by Hon’ble Justice Sanjeev Kumar are very much correct in the eyes of the Law. Moreover, the petitioner being a Contractual employee was subsequently removed from the Job post the incident.
Hence, the Union of India needs to clear the position and ambiguity on Section 3 of the Act and does not make “disrespect” to the Indian National Anthem an offence unless it prevents the signing of the National Anthem or disturbing the assembly engaged in such signing. The conduct must amount to either preventing the signing of the National Anthem or causing a disturbance in the assembly engaged in such singing. Only then can the same come within the purview of Section 3 of the Act.
Scores of Kashmiri students from the State who are studying in different parts of the country have been caught disrespecting the National Anthem and later booked under the Prevention of Insult to Honours Act within and outside J&K, wherein a majority of the cases filed are against people for not standing up when the national anthem was being played, the playing of which was indeed made optional by the Hon’ble Supreme Court in the year 2018 who left it to a government panel to frame guidelines in this sensitive matter. These people under the garb of Law take benefit of the ambiguity as present in the Law and take undue advantage of the same.
Hence, this is a severe issue, and appropriate directions/amendments need to be taken in order to clear the misconceptions, ambiguity in Section 3 of the Act and include all the Acts which are ‘disrespectful to the National Anthem’ as offences under Section 3 of the Prevention of Insult to Honours Act
[1] Section 3, Prevention of Insults to National Honour Act 1971
[2] United States Code 36 U.S.C. § 301
[3] Union of India v. Naveen Jindal, (2004) 2 SCC 510
[4] Article 51A, Indian Constitution
[5] Bijoe Emmanuel & Ors. v. State of Kerala & Ors, (1986) 3 SCC 615
[6] Id
[7] Shyam Narayan Chouskey v. Union of India, AIR 2003 MP 233
[8] Shyam Narayan Chouskey v. Union of India, AIR 2018 SC 357
[9] Dr. Tawseef Ahmad Bhat v. State of Jammu & Kashmir, CRMC No.437/2018, Jammu and Kashmir High Court
[10] Supra note 1
Preferred Citation: Mridull Thaplu, National Anthem Case with reference to recent ruling of Jammu and Kashmir High Court, The Criminal and Constitutional Law Blog, Published on 25th July 2021.