SC's National Anthem order raises questions about an individual's fundamental rights

The Supreme Court called for a mandatory dose of patriotism on Wednesday.

In its ruling, a bench comprising Justices Dipak Misra and Amitava Roy, the SC ordered cinema halls across the nation to mandatorily play the National Anthem before screening of a movie and the audience must stand and show respect.

Even as the next hearing in the case has been scheduled for 14 February, there have been previous judgments, some of which show that the country's highest court has taken into account an individual's right, faith and belief.

Representational image. Reuters

Representational image. Reuters

First, let's travel back 30 years ago to 1986 bringing to the fore an old debate on a citizen's fundamental right — Bijoe Emmanuel & Ors vs State Of Kerala & Ors on 11 August, 1986. The apex court granted protection to three children, who belonged to the Jehovah's Witness sect, when they did not sing along to the National Anthem in school. The court held that the children did not disrespect the anthem and that forcing them to sing was against their fundamental right to religion as the singing of it was against the tenets of their religion.

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 s. 3 of the Prevention of Insults to National Honour Act. [527B-G]

Interestingly enough, this isn't Justice Misra's first case involving the National Anthem. As a judge in the Madhya Pradesh High Court, Misra passed an order on the "imperatives of showing respect to the National Anthem" quotes a report in The Indian Express. It has to be noted that the petitioner was none other than Shyam Narayan Chouksey, who filed the plea in this case as well — being successful both times. In November 2006, the apex court closed the case saying that the "questions of law were being left open" and allowed the movie (Kabhi Khushi Kabhi Gham), against which the case was filed, to be screened in its original form, minus any cuts to the scene involving the National Anthem.

'Jana Gana Mana' penned by Rabindranath Tagore was first sung on 27 December, 1911, at the Calcutta session of the Indian National Congress — Tagore's niece Sarala Devi Chowdhurani recited the song with some school students and in front of leaders such as Bishan Narayan Dar, Bupendra Nath Bose and Ambika Charan Mazumder, mentions this report in The Hindu. On 24 January, 1950, the assembly met to sign the Constitution of India and President Rajendra Prasad declared 'Jana Gana Mana' as the National Anthem and 'Vande Mataram' the national song.

Current laws don't force a person to stand up or sing the National Anthem — case in point, this judgment of apex court in the case of Bijoe Emmanuel v. State of Kerala: "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." Further, The Prevention of Insults to National Honour Act, 1971, categorically talks only about the prevention of singing the National Anthem, apart from insult to the National Flag and the Constitution.

Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

Earlier in 2016, the United States was similarly divided in its opinions, when San Francisco 49ers quarterback Colin Kaepernick, chose to sit and then to kneel, rather than stand, during the national anthem before his team’s games. The New Yorker reports that while the team backed Kaepernick, with other players joining in, politicians like Ted Cruz denounced his act. The report goes on to say that the individual refused to stand "as a form of political expression", protesting the treatment of African-Americans by the police and the society, at large. It also quotes a similar case where two girls belonging to the Jehovah’s Witness faith were punished for refusing to salute the flag and repeat the Pledge of Allegiance, a mandatory requirement by state law for students. This gave rise to West Virginia State Board of Education v. Barnette, which The New Yorker says "stands as perhaps the greatest defense of freedom of expression ever formulated by a Supreme Court Justice", Robert Jackson.

It has to be noted that the Home Ministry's Orders Relating to the National Anthem of India does insist on standing during the National Anthem, but it is an advisory and doesn't prescribe a penalty for failing to do so; there's certainly nothing on sedition.

Finally, what will Rabindranath Tagore, the author of our National Anthem, think of this 'patriotic' order by the Supreme Court? He is not around to answer it, but perhaps this line from his 1917 essay Nationalism in India might serve as one.

India has never had a real sense of nationalism. Even though from childhood I had been taught that the idolatry of Nation is almost better than reverence for God and humanity, I believe I have outgrown that teaching, and it is my conviction that my countrymen will gain truly their India by fighting against that education which teaches them that a country is greater than the ideals of humanity.

With inputs from PTI


Updated Date: Dec 01, 2016 18:01 PM

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