Author – Mahir Khanna

Introduction

To “sit or stand” at the time when the national anthem is being played in a cinema hall has become a debatable subject in India. People who were being allegedly asked to leave the cinema hall when they refused to stand for the national anthem or worse, people have been humiliated and beaten. Post and videos like these have gone viral before. In another more recent case, a complaint was launched against actor Amitabh Bachchan for singing the national anthem for 1 min 22 sec instead of the 52 seconds as prescribed by our law. These two incidents are not completely similar. The first incident shows the lack of awareness in complying with the sacred duty to stand for the national anthem while in the other incident shows negligence.

This research paper also focuses on the directions of the Supreme Court in Shyam Narayan Chouksey v. Union of India that all the cinema halls in India shall play the national anthem before the movie starts and all present in the hall are compelled/obliged (mandatory) to stand up to show respect to the national anthem as a part of their “sacred obligation”. This would instil the feeling of unity and committed patriotism and nationalism; 

Section 3 of the prevention of insult to national honour Act, 1971 says “Whoever purposely prevents the singing of the national anthem or causes disruptions to any assembly engaged in such singing shall be penalized with imprisonment for a term, which may extend to three years, or with fine, or with both.”; however, the guidelines are silent on “if people don’t stand”

Some people also feel it is a violation of their right to freedom of speech and expression. So, the objective of this research paper is to discuss the constitutionality of this decision.

“Patriotism cannot be our final spiritual shelter;

My refuge is humanity.

I will not buy glass for the price of diamonds, and I will never allow patriotism to triumph over humanity as long as I live. – Rabindranath Tagore

What Is the National Anthem?

National Anthem (also the national song, national hymn, etc.) is commonly a patriotic musical composition that reminds and eulogizes the history, traditions, and struggles of its people, recognized either by a nation’s government as the official national song or by convention through use by the people. The custom of an officially adopted national anthem became popular in the 19th century in Europe. 

A national anthem is mostly of a country’s local language or national language or most common language.

With words by one of the world’s most prominent writers, Jana Gana Mana is in a better class of national anthem. National anthem and flag are seen as a symbol of patriotism and a wide array of contexts. Most common examples are of nationwide important days such as independence day of a country or the starting of an event or winning of a medal in a sports event.

A national anthem, both when in or outside our country induces a feeling of belongingness towards our motherland and we bow down with respect for our country.

There are certain etiquettes needed to be followed while hoisting the flag or singing the national anthem(India) :-

  • One must always stand in an upright manner and at attention position while the anthem is playing.
  • Renditions of the anthem-other than those that resemble the original-are considered disrespectful.
  • One must not be under the influence of any substance or intoxicated while singing the anthem.
  • There should not be any indiscriminate singing of the anthem.
  • If the National Anthem is played by a band, it is preceded by a roll of drums–which is about 7 seconds long- to make the audience aware of it, and provide them enough time to stand in respect.
  • There are times when a shortened version of the anthem that comprises only the first and the last stanza. This version lasts about 20 seconds and is generally played in army messes before toasts, the official full version of which lasts 52 seconds.

How do Countries Around the World Foster Respect for their National Anthem?

In some Western countries, such as Britain and Australia, protocols state how one should behave when the national anthem is played. But they are not laws. In the United States, the rules are outlined in a code on patriotic customs. Asian countries including Singapore and Malaysia have their own specific national anthem law.

In Thailand, the national anthem is played every day on TV and in public places such as parks, schools, and offices at 8 am and 6 pm. Thais can, therefore, be arrested for not standing while the royal anthem plays, but there is no official penalty for the act alone.

In the more recent news, Hong Kong’s legislature was pushing forward on a controversial bill that would criminalise “abuse” of China’s national anthem.

How should one act when the National Anthem is played?

In most countries, people are required to stand as a mark of respect. The US code includes a list of etiquette. During the singing of the national anthem and when the flag is displayed, all present should face the flag and stand at attention with their right hand over the heart. When the flag is not displayed, people should face the music and conduct themselves as if the flag was there. In Singapore and Malaysia, national anthem laws also require people to stand at attention.

What are the Penalties for non-compliance?

In Britain and Australia, there are only protocols for how one should act during the national anthem. Even the USA does not prescribe any penalties for non-compliance.

Stricter regulations, meanwhile, are seen in some Asian countries. In Singapore, non-compliance could lead to a fine. In Malaysia, a policeman can arrest without a warrant any person offending in his sight, and those knowingly showing disrespect towards the anthem in a public place are subject to a fine or a jail term not exceeding one month.

Japan’s national flag and anthem, Kimigayo, and guidelines for them were only established in 1999. The playing of the anthem and displaying of the flag were made mandatory in many Tokyo school ceremonies in 2004 by then-governor.

Germany has no national anthem law, but rules exist to punish “defamation of the state and its symbols”, including the anthem.

Measures By The Indian Government to Prevent Disregard of National Anthem

  1. The Prevention of Insults to National Honour Act, 1971 is an Act of the Parliament of India which prohibits the defamation or insult to the country’s national symbols, including the National Flag, Emblem the constitution, the National Anthem and map of India including contempt of Indian constitution.

As per stated by the act:

“Whoever intentionally prevents the singing of the national anthem or causes disruption to any gathering engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.”

The Law puts enhanced penalty in the above case, as classified under Section 3A for disregard of National Flag, Constitution, National Anthem, as offences and convicts the Penalties or sentences as follows. “Whoever having already been convicted of an offence under section 2 or section 3 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term, which shall not be less than one year.”

  1. Article 51A of the Indian Constitution talks about Fundamental duties. These duties were added by the 42nd Amendment of the constitution of India in 1976.

As per the law, Article 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;”

  1. The Flag Code of India,2002 is a collection of laws, practices and conventions that apply to the display of the national flag of India.
  2. Orders Relating to the National Anthem of India”, by Ministry of Home Affairs 

Like: 

The occasions when the full or short anthem can be sung and the manner in which flag hoisting is to be done.

“Whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a newsreel 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.”

Fundamental Duties

The fundamental duties were added by the 42nd amendment of the Constitution in 1976. Such duties are generally not found in the constitution based on western societies. They are invariably found in the socialist (china) constitutions but they are also found in the non-socialist constitutions (Sri Lanka). Thus the Asian and African societies give greater emphasis to the duties than the western societies.

Before the inclusion of fundamental duties, P.V. Kane was critical of the Constitution that it ignored the Indian tradition of duties and spoke only of rights. Reference to duties, however, finds position even in the International instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Embodiment of duties in the Constitution is not found necessary because they can always be imposed by the state in the absence of or in accordance with fundamental rights.

Their incorporation, however, remains that the Constitution presents an integrated scheme of which the fundamental or any other constitutional rights are only a part.

The scheme must be seen as one in which Constitution envisages in responsible citizens and in that sense the fundamental duties shall be performed and seen as an educative role.

They also have legal value in the sense that any law which implements fundamental duties cannot be invalid on the ground of conflict with fundamental rights unless such conflicts are irreconcilable. The rights must be reconciled with the duties. ‘Wherever there are rights, there are certain duties.’

Article 51 A – Fundamental Duties – It shall be the duty of every citizen of India-

(a) To abide by the constitution and respect its ideal and institutions, the national flag and 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

“Duties in one citizen implies rights in another citizen.”

They only provide a moral and ethical basis for the behaviour of citizens, but cannot be enforced through judicial pronouncements.

Relations Between Fundamental Rights and Duties

Enunciating the relationship between Parts III, IV and IV-A the court has observed in Naveen Jindal v/s UOI

“Fundamental duties, as defined in Article 51-A, are not made enforceable by a writ of court just as the fundamental rights are, but it cannot be lost sight of that ‘duties’ in Part IV-A Article 51-A are prefixed by the same word ‘fundamental’ which was prefixed by the Founding Fathers of the Constitution to ‘rights’ in Part III…. The State is all the citizens placed together and hence though Article 51-A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the State….Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values.”

And again stating in Ramlila Maidan incident 

“A common thread runs through Parts III, IV and IV-A of the Constitution; on One Part enumerates the fundamental rights, the second declares the fundamental principles of governance and the third lays down the fundamental duties of the citizens. While interpreting any of these provisions, it shall always advisable to examine the scope and impact of such interpretation on all the three constitutional aspects emerging from these Parts.”

This position has been repeated and applied in subsequent cases like Charu Khurana v/s UOI

It may be said that the duties are not self-executing. The State must make laws for its implementation. In the absence of such laws, for example, mandamus cannot be sought against an individual who does not observe his duties under this article. But in appropriate cases, as in Vishaka v. State of Rajasthan , if non-observance of duty by one citizen can be established as violation of the right of another, appropriate remedy may be provided by the courts. Concerning the duty under clause (a) of this article, it has been held that “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”.

 Similarly flying of National Flag unconstructively with honour and dignity is consistent with the duty in clause (a), like in UOI V/s Naveen Jindal.

The Supreme Court upheld a judgment insisting that the Indian Constitution and in particular the fundamental right to freedom of expression, protected the right to fly the national flag. Naveen Jindal, a director of a factory, filed a petition after he was told that he was not permitted to fly the national flag according to the Flag Code of India. The Court reasoned that the right to fly the flag can be considered as an expression of an individual’s allegiance and pride for their nation. However, the Court did note that this right can be subject to certain reasonable statutory restrictions.

Clash of Religious beliefs

Bijoe Emmanuel & Ors vs State of Kerala & Ors

Background

Three students namely Bijoe, Binu and Bindustudying in a school near Kottayam, were expelled from school after they refused to sing the national anthem of India. Their father had asked them not to salute the flag or sing the anthem because it was against their religious faith in Jehovah’s Witnesses. Through their representative, they filed a writ petition in the High Court of Kerala, seeking to restrain authorities from preventing their school attendance. 

Arguments Advanced

The petitioners argued that even if they do not sing the Anthem, they do stand up on such occasions to show their respect to the National Anthem. They desisted from actual singing only because of their honest belief and conviction that their religion did not permit them to join any rituals except it be in their prayers to Jehovah their God.  They further submitted that they truly and conscientiously believe what they said was not in doubt. They did not hold their beliefs idly and their conduct was not the outcome of any perversity. They emphasized that singing the anthem was idolatry and an act of unfaithfulness to their God. 

They alleged that their expulsion amounted to an infringement of their fundamental rights to freedom expression under Article 19 and freedom of religion under Article 25 (freedom of conscience) of the Constitution of India. The High Court dismissed the petition on the ground that no word or thought in the national anthem could offend any religious beliefs.

Judgement

Subsequently, they appealed the decision to the Supreme Court of India. The Court found their expulsion in violation of both Articles 19 and 25 of the Constitution.

This case is profoundly significant because it affirms that no one can be legally compelled to violate his conscientiously held religious beliefs. While recognizing that fundamental rights are not absolute and are subject to public order, morality, and health, the Supreme Court limited the State’s ability to impose on its citizens arbitrary and disproportionate restrictions. The decision stated: “To compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection would clearly contravene the rights guaranteed by Art. 19(1)(a) and Art. 25(1).”

The ruling also safeguards constitutional freedoms for minority groups. The Court further stated: “The real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.” Justice Reddy added: “Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25.”

Even today, Bijoe Emmanuel v. State of Kerala stands as one of the pillars of free speech in India. Jehovah’s Witnesses are happy to have had a part in contributing to the constitutional freedoms of all citizens in India. 

Similar view was expressed in their judgment given by US Supreme Court in case of  West Virginia State Board of Education V. Barnette in 1943. The US Supreme Court delivered a 6-3 opinion, holding that the free speech clause of the First Amendment to the US Constitution protected student from being forced to salute the American Flag.

Patriotic test

As recent as on 11th May 2019, it was reported that a man from Bangalore was arrested by the police on charges of dishonouring the nation as he refused to stand up for the national anthem that was played before the movie in the cinema hall and was later released on bail. There is also a contradictory story reported which said that the charges on this man were dropped and the paper claimed that the supreme court had, post the Shyam Narayan Chouksey case, given another order stating that standing during the national anthem was not mandatory. Therefore, it is uncertain as to what is the present status of the law.

The petitioner put forward these questions to understand the difference between respect and disrespect of National Anthem. The court examined the case and made observations for paying due respect to National Anthem and National Flag of our country.

Let’s look deeper into the cinema hall case: –

Shyam Narayan Chouksey v. Union of India

Background

In this case, the Public Interest Litigation was filed by Bhopal based activist on 24th July 2003. Mr. Shyam Narayan Chouksey had gone to watch the film “Kabhi Khushi Kabhi Gham” in the year 2003. When the national anthem was played in the movie, he stood up respectfully but he was the only person, who stood up. Those behind him said he was obstructing their view, instead of standing up. They asked him to sit down. He got offended by this experience as also the “commercial use of the national anthem” in the film. Mr. Chouksey filed a PIL in Madhya Pradesh High Court in Jabalpur. A division bench agreed with his contention and banned the screening of the film across India.

Judgement

This order was later stayed. Supreme Court (Coram of Hon’ble Justice Dipak Misra and Amitava Roy) gave the following directions on 30/6/2016 to be scrupulously followed:

  1. 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 persons involved in it either directly or indirectly shall have any commercial benefit or any other benefit.
  2. 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 everyone present to show due respect and honor. To think of a dramatized exhibition of the national anthem is inconceivable.
  3.  National anthem or a part of it shall not be printed on any object and 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.
  4.  All the cinema halls in India shall play the national anthem before the feature film starts and all present are obliged to stand up to show respect to the national anthem.
  5. 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 door can be opened.
  6. When the national anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.
  7. The abridged version of the national anthem made by one for whatever reason shall not be played or displayed.

Hon’ble Supreme Court has further stated 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 National Flag. The citizens of this country must realize that they live in a nation and duty-bound to show respect to national anthem which is the symbol of the constitutional patriotism and inherent national equality.

Further, an Inter-Ministerial Committee had formed by an order/notification dated 5th December 2017. The Committee has been given the responsibility to make recommendations for regulating the playing/singing of the National Anthem and to suggest changes in the 1971 Act or in the Orders relating to the National Anthem of India.

In view of the aforesaid, court disposed of the writ petition with the following directions:

  1. The Committee appointed by the Union government shall submit its recommendations to the competent authority in terms of the Notification dated 5th December, 2017, for follow up action.
  2. The order passed on 30th November, 2016, which made the playing of the national anthem prior to the screening of feature films in cinema halls mandatory has been modified to the extent of being optional or directory.
  3. The Committee constituted by the Union government to look into all aspects of the matter shall make its recommendations uninfluenced by the interim directions of this Court, as clarified in our order dated 23rd October, 2017.
  4. The executive orders relating to the National Anthem of India and the prevailing law bind the citizens or persons to show respect whenever it is played or sung on any specified occasions.
  5. Disabled persons shall remain to be exempted till the final decision of the competent authority.

The case is important in the history of India as it inculcates a proper sense of paying respect to the National Anthem. It is the national symbol representing the nation along with the national flag and the constitution of India. These symbols are the pride of the nation and any disrespect towards them becomes a matter of grave concern for any nation. Respect towards national symbols is the very basic duty of every person as a citizen of India under Article 51 (A) and promotes a sense of unity, oneness and nationalism among the public.

(En)Forced Patriotism

Equating Nationalism with Patriotism is the root-cause of all the problems. Though both Nationalism and patriotism show the relationship of an individual towards his or her nation, there is a vast difference between them. While Nationalism means to give more importance to unity by way of a cultural background, including language and heritage, patriotism pertains to the love for a nation, with more emphasis on values and beliefs.

Many Indians have this question which needs to be answered by the law and the legal authorities whether it is compulsory to stand up for the national anthem. According to several renowned personalities across the globe, it gives a sense of pride and there is nothing wrong in promoting respect for the national anthem of one’s country.

The Chauksey case judgment, although in utmost good faith, tried to instil a sense of patriotism and nationalism by invoking the responsibilities stated in Article 51A, does put the common man in a tough spot. Bypassing an order that made it mandatory for all patrons viewing a movie to stand while the national anthem is played, in essence, does place a restriction on the freedom of expression of the people.

The orders were issued with an aim to ‘impart a feeling of patriotism’ and that individuals were ‘compelled by a sense of honour to demonstrate regard to National Anthem as an image of Constitutional Patriotism’ as an obligation.

Gestures and acts like saluting the tri-colour flag, singing songs and reciting poems like Jana Gana Mana and Vandemataram and raising slogans like Inquilab Zindabad against the brutality of the ruling class played a key role in mass mobilization during the struggle for independence against the British. Even in post-independent India, the importance of such sloganeering has never been undermined and show of respect towards national symbols continued, especially during important occasions like independence day and republic day.

However, in recent times, a debate has been raging over – How important is it to display one’s respect towards national symbols, not voluntarily, but due to external enforcement by the legitimate State institutions – including the Judiciary- and non-State academic institutions.

Arguments in favour of enforced patriotism

  1. Collective expression of sentiments play a positive and important role in achieving social and political cohesiveness. 
  2. India is a land of diversity. Due to the vast diversities in terms of language, topography, religion, ethnicity, the Indian State is always under threat from divisive and separatist tendencies. Hence, the enforced patriotic acts in necessary proportions are important for the political enjoinment of the culturally diverse Indian society.
  3. To inculcate the feeling of patriotism in today’s youth, who are the majority populace, are not aware of the great sacrifices made by the freedom fighters in achieving independence 70 years ago. 
  4. Citizens should realize that there is no protection for individual rights without a State. The citizens must forego a part of their freedom and liberty and should show and display the respect towards national symbols in a collective environment.

Arguments against enforced patriotism

  1. As per the Article 19(1)(a), all citizens shall have the right to freedom of speech and expression, the apex court has pronounced in various cases, that the freedom of expression includes the freedom of non-expression also. Hence, the enforced acts of patriotism are opposing to the democratic spirit of the constitution itself.
  1. Nationalism without liberalism is a monster. Moreover, there are high chances that patriotic feelings and respect towards national symbols and institutions are strengthened, not when they are kept reserved, but when they are in reach and accessible to the common man. 
  2. Legally speaking, the fundamental duties prescribed in the Part IVA of the Constitution are not enforceable by the judicial pronouncements alone. 

Conclusion

Fundamentally, a patriot expresses the emotion of love towards his country in a passive way, while a nationalist expresses his love or concern for the country in an active political way.

Several countries have adopted their own way of inculcating the sense of patriotic in its citizens; in countries like China, Thailand and Colombia, national anthem is played on the national radio and T.V twice every day, but in both these cases we can see that China being a non-democratic state can force it over its citizens meanwhile Colombia being a comparatively a very small country with most of its citizen belonging to a common cultural background people.

Patriotism towards the nation is a sentiment. Hence, different people have different ways of expressing it. Moreover, some people find it unreasonable to express patriotic sentiments in a recreational space (like cinema halls) and cradles of liberty and free speech like universities.

Asking the law-abiding citizens to prove their patriotism by performing certain acts stifles the democratic spirit of our political setup. This reasoning was agreed upon even by the Supreme Court of the USA, which acts as a torchbearer to the democratic spirit in the modern world and the judgements of which still guide the Indian apex judiciary.

Rights and duties are two faces of the same coin. If we are aware of our fundamental rights we must follow the duties given under Article 51-A which spread national unity, integrity and brotherhood in one another. Every citizen has to remember one thing that he owes the duties to state; if he does not care for duties he does not deserve rights.

Every citizen is expected to monitor his own code of conduct in democratic life, in these circumstances, if somebody is not ready to stand for national anthem other people should not create any type of law and order situation in the name of nationalism. We must remember that our constitution promotes peace, harmony and tolerance.

India is an excellent example of “Unity in Diversity”National integration is not built with brick and mortar. It has to grow silently in the minds and hearts of citizens.

References

Primary sources (Bare Acts)

  • The Prevention of Insults to National Honour Act, 1971
  • The Flag Code of India,2002
  • Orders Relating to the National Anthem of India, by Ministry of Home Affairs 
  • The Constitution of India, 103rd Amendment

Secondary sources

  • V.N. Shukla, Constitution of India, Eastern Book Company,2018, 13th edition, pg no. 392-395
  • M.P. Jain – Indian Constitutional Law, Lexis Nexis, 8th edition, 2019
  • J.N. Pandey, Constitution of India, Central law agency, 56th edition, 2019, pg no.507

Web sources

https://www.jagranjosh.com/current-affairs/debate-on-enforced-patriotism-in-indian-society-1501140799-1





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