• December 8, 2016
  • 11:30 am
  • Rakesh Singh Bhadoriya

Supreme Courts recent order [Shyam Narayan Chouksey v. Union of India, Writ Petition(s)(Civil) No(s). 855/2016, decided on 30.11.2016] has made it compulsory for all cinema halls in India to play the national anthem while showing the national flag on screen. To understand the rationale behind this judgment, given by the bench of Dipak Misra and Amitava Roy, JJ can be seen from this statement of the bench, “When the national anthem is played it is imperative for everyone to show honour and respect. It would instill a sense of committed patriotism and nationalism…Time has come for people to realise that the national anthem is a symbol of constitutional patriotism…people must feel they live in a nation and this wallowing individually perceived notion of freedom must go…people must feel this is my country, my motherland.” [emphasis added]. Is the Supreme Court dissing the same thing that it has sought to protect over the years- individual liberty?
The Supreme Court’s decision to consider this PIL filed by Shyam Narayan Chouskey which was a writ of mandamus, the primary question being that “what constitutes the disrespect or abuse of the national anthem?” came after a wheelchair-bound man was assaulted by a couple at a cinema hall in Panaji for not standing up during the rendition of the anthem.

The law as such does not criminalise the act of not standing up while the national anthem is being played. But should it?  For this the motive behind two acts need to be examined. The act of the person not standing up when the anthem is played and the Act that criminalises such an act. While making it compulsory to play the national anthem is a debate altogether different from the question that I seek to ponder upon. Section 3 of the Prevention of Insults to National Honour Act, 1971, says, “whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances 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.” While this Act only criminalizes the act of preventing or obstructing or causing disturbances to others from singing the National Anthem. Therefore, the law is silent on the act of standing or sitting while the anthem plays.

In 1987, a two-judge Bench of the top court ordered a school in Kerala to take back three children who had been expelled for not singing the National Anthem, although they stood during the Anthem. The children desisted from singing because of their conviction that their religion did not permit them to join any rituals except in their prayers to Jehovah, their God.The court ruled that there is no legal provision that obliges anyone to sing the National Anthem, and it is not disrespectful to the Anthem if a person who stands up respectfully when it is being sung does not join in the singing. The court, however, did not deal with the issue of whether it would be disrespectful if a person chose not to stand during the National Anthem. The judgment ended with the message: “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.”

The bench here is making some very serious comments on individual liberty and the ideas of patriotism. The aspect which interests me particularly is this,

“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.”

So while the order of the Supreme Court mainly concerns with movie theatres playing the national anthem compulsorily before any film and hence their fundamental right. This particular statement by the bench which says that there is no individual thought of space where patriotism can be derived and that a sense of community based patriotism is conceived out of such an exercise. That it is “constitutionally impermissible’ to allow a different notion or perception of giving respect.

The question still remains though, is it an offence to not stand up when the national anthem is being played? And if it is made an offence by a further order of the Supreme Court or by an Act passed by the Parliament, then does it curb individual liberty? 

BY:- Aanchal  Pandey