“Being in a wheelchair has made everyday things difficult. Things you wouldn’t imagine. Like the looks I get at high school basketball games when they tell everyone to stand for the National Anthem.”[1]
India prides itself on a rich history and a glorious past, bejeweled by its long-drawn and a successful struggle against the British Raj. It is universally known that our country had to endure a prolonged battle against the British oppression. The roots of this tyrannical regime were so deep-seated that in the process of pulling out of the poisonous weeds of the empire, several of our motherland’s sons and daughters were sacrificed. The symbols of pride of our country; the National Anthem, National Song, the National Flag, etc., are a celebration of an end of this despotic and autocratic empire and taking over of our country by its own people to constitute a “Sovereign Socialist Secular Democratic Republic”.[2]
Acknowledging the significance of our country’s national symbols, the Supreme Court in Union of India v. Naveen Jindal[3], observed, “National Anthem, National Flag and National Song are secular symbols of the nationhood. They represent the supreme collective expression of commitment and loyalty to the nation as well as patriotism for the country.” Clearly, considering the rich diversity of our country, these symbols, further, play a pivotal role in integrating the varied cultures, traditions, languages, habits, etc., of its numerous citizens and uniting them under a common awning.
Universally, National Anthem of a country is devised to eulogize the history, traditions, and struggles of its people. It is considered as a symbol of pride of a nation and a means to invoke/ re-ignite a feeling of patriotism and unity amongst its citizens. In the words of R.C. Lahoti, J.[4], “[a] National Anthem is a hymn or song expressing patriotic sentiments or feelings. It is not a chronicle which defines the territory of the nation which has adopted the anthem. A few things such as-a National Flag, a National Song, a National Emblem and so on, are symbolic of our national honour and heritage….The National Anthem is our patriotic salutation to our motherland, nestling between the Himalayas and the oceans and the seas surrounding her…” Therefore, considering the sanctity, inherent to a nation’s anthem/National Anthem, it becomes imperative that due respect is accorded to it. Article 51-A of the Constitution of India (“the Constitution”) obliges and prescribes it as one of the fundamental duties of every Indian citizen, “to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.[5]
While appreciating that the public acts of insult to the symbols of the sovereignty and the integrity of the nation i.e. the National Anthem, National Flag, etc., are required to be curbed, Parliament enacted the Prevention of Insults to National Honour Act, 1971[6] (“the 1971 Act”). The scope of the said Act, inter alia, is to restrict “overt acts of insult to, and attacks on, the national symbols by burning, trampling, defiling or mutilating in public.” Pertinently, the 1971 Act is not intended to prohibit honest and bona fide criticism of the said symbols[7]. Section 2 of the 1971 Act penalises the insults to the Indian National Flag and the Constitution of India/Constitution, punishable with an imprisonment for a term which may extend to three years, or with fine, or with both. Significantly, as per Section 3 of the said Act, “[w]hoever 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” Provisions for enhancing penalty on the second and subsequent conviction for the offences under Sections 2 and 3 of the 1971 Act is provided under Section 3-A[8], thereof.
The Emblems and Names (Prevention of Improper Use) Act, 1950[9] (“the 1950 Act”) is another enactment aimed, “to prevent the improper use of certain emblems and names for professional and commercial purposes” Under the said Act, an “emblem”[10] means any emblem, seal, flag, insignia, coat-of-arms or pictorial representation specified under the Schedule[11] to the said Act. Sections 3 and 4 of the 1950 Act prohibit the improper use of certain emblems and names and the registration of certain companies, etc., respectively, in the manner as specified therein. Further, Section 5 of the 1950 Act prescribes a penalty for contravention of the provisions of Section 3 thereof, “with fine which may extend to five hundred rupees.”
Appositely, the Supreme Court[12], while upholding the vires of the 1950 Act, held that the “provisions of the Act read with the Preamble, and the Objects and Reasons make it clear that there was imperative necessity for regulating the use of certain emblems and names…..From the Objects and Reasons, the Preamble and the provisions of the Act with the built-in-limitations in Section 3 taken with the Schedule, a policy is clearly discernible and there is sufficient guidance therein to enable the Central Government to exercise its power under the Act.”
The Supreme Court, while dealing with the right of citizens of India to hoist flag, in Union of India v. Naveen Jindal[13], held the same to be a fundamental right of a citizen under Article 19(1)(a)[14] of the Constitution, being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation. However, as per the Court, such right is not absolute, rather, qualified and subject to reasonable restrictions, prescribed under Article 19(2) of the Constitution. It was, inter alia, held by the Court, “[t]he Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of the National Flag.” The Supreme Court, subsequently[15], while reiterating that the right to fly/hoist flag is a fundamental right, further, held, “the National Flag is both a benediction and a beckoning. Thus, in case a person shows any kind of disrespect to the national flag or does not observe the terms contained in the Code, legal action may be taken against him under the relevant statutory provisions.”
Significantly, the Supreme Court in Bijoe Emmanuel v. State of Kerala[16], was posed with a question regarding the balance between individual’s rights under Articles 19(1)(a) and 25(1)[17] of the Constitution and the obligation to recite National Anthem, if any. In particular, the Court was called upon to decide; whether a refusal by an individual to recite the National Anthem, on the ground of religious faith[18], amounted to a contravention of the provisions of Section 3 of the 1971 Act and dereliction of the fundamental duty under Article 51-A(a) of the Constitution. While delving in the issue(s) raised, the Court at the outset observed, “there is no provision of law which obliges anyone to sing the National Anthem nor do we think that it is 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.”Accordingly, it was, inter alia, held, “[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.” Clearly, the findings of the Court were premised on the fact/observation that as long as the objection to recitation of National Anthem were genuine; not motivated or perverted and based on universally accepted tenets, further, due respect was shown by such individual at the time of recitation, such objections needed to be upheld.
In Shyam Narayan Chouksey v. Union of India[19], a writ petition[20] was filed before the Supreme Court seeking directions[21] against the State/Union of India and its functionaries to, inter alia, take appropriate steps for, “inculcating in the public, a proper sense for paying due respect to the National Anthem”. In the said petition, the Supreme Court, initially on 30.11.2016[22], was pleased to, inter alia, direct all the cinema halls in India to 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.” It was further directed that prior to the National Anthem being 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 as the same, per the Court, would amount to a disrespect to the National Anthem. The Court also directed that the abridged version of the National Anthem, made by any one for “whatever reason, shall not be played or displayed”. These directions, though, interim in nature created a huge uproar amongst several classes of citizens. The same were primarily criticised, inter alia, on the ground that there may be varied modes in which respect and patriotism may be demonstrated and that to compel citizens to abide by these directions as well as to insist on playing of National Anthem in cinema halls would amount a transgression of several constitutional rights, and in particular the right to freedom of speech and expression conferred under Article 19(1)(a) of the Constitution. The instant petition was finally disposed of by the Supreme Court on 09.01.2018[23] under the observation that the Union Government, vide an Order/Notification dated 05.12.2017, had established an Inter-Ministerial Committee on playing/singing of the National Anthem. Accordingly, it was directed by the Court that the said Committee would consider and look into all the aspects relating to, inter alia, the occasions and place where the National Anthem may be sung/played/recited; amendments required under the 1971 Act relating to National Anthem, etc., and to submit its report/ recommendations in terms of the Notification/Order dated 05.12.2017. Significantly, while passing the said order, the Court modified its previous interim order to the effect, “playing of the National Anthem prior to the screening of feature films in cinema halls is not mandatory, but optional or directory.” Pertinently, it further was reiterated by the Court that the citizens and/or persons would continue to be bound to show respect, “as required under executive orders relating to the National Anthem of India and the prevailing law, whenever it is played or sung on specified occasions”, exception to the same being; disabled persons[24], “till the final decision of the competent authority with regard to each occasion whenever the National Anthem is played or sung.”
Significantly, till date, none of the existing provisions under law, including that under the 1971 Act or the 1950 Act prescribe and provide for an express mode or manner, which would amount to offering due respect to the National Anthem, National Flag, etc. In fact, standing for National Anthem has not been prescribed under these enactments as amounting to due mode of respect and the alternate thereof i.e. sitting during such playing, as punishable. Nevertheless, it is a practice across the world that whenever a National Anthem is played, individuals stand up and participate in the process of such playing/singing. However, this practice tends to often result in prejudicing against individuals who may be, for various reasons, unable to participate in the process of standing, singing or playing, etc. Pertinently, the Supreme Court has clarified[25] that justifiable and genuine reasons for non-singing/participation may be exempted as long as the National Anthem/Symbol is respected. Despite this, the society tends to often reprimand those who may not be able to follow and abide by such norms, without appreciating the reasons behind the same. Undoubtedly, when the law does not prescribe rigid frameworks quantifying the parameters of respect and disrespect of the National Symbols, it is not up to individuals to ostracise a thought process based on patriotism and respect, though, differing in the modes of their expression. Patriotism is not based singularly, in following the norms, rather, it goes way deep in the hearts of individuals. An individual may be patriotic, though, may opt to device an exclusive mechanism/mode of expression of such loyalty towards nation. In distinction, an individual may choose to participate in the normative process, yet, be wanting of nationality. However, without prejudice to the same, it needs to be equally appreciated that a uniform mean of expression may be beneficial in certain cases for arousing a mutual feeling of belonging and love towards a nation. After all, we all do follow what a majority group tends to do and practice. Despite all, in the time and society that we pride to be a part of, some leverage needs to be allowed to individualistic expression of patriotism, without societal compulsion or fear of ostracism, especially (and reiterating) when the law does not specify a common mode, amounting to offering due respect to our National Symbols. It is, equally, to be kept in mind that patriotism goes way beyond mere expression, rather, true patriotism comes from a sense of responsibility, humanity and compassion towards State, society and those in need, above all.
As Rabindranath Tagore once remarked, “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.”
* Managing Associate, L&L Partners Law Offices
[1] Travis Jeremiah Dahnke
[2] Refer to the Preamble of the Constitution of India
[3] (2004) 2 SCC 510
[4] Sanjeev Bhatnagar v. Union of India, (2005) 5 SCC 330
[5] Article 51-A(a) of the Constitution of India
[6] Prevention of Insults to National Honour Act, 1971
[7] Explanation 1 to Section 2 of the Prevention of Insults to National Honour Act, 1971 provides, “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.”
[8] “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.”
[9] Emblems and Names (Prevention of Improper Use) Act, 1950
[10] Section 2(a) of the Emblems and Names (Prevention of Improper Use) Act, 1950
[11] Includes the National Flag (as Entry 3 under the Schedule)
[12] Sable Waghire & Co. v. Union of India, (1975) 1 SCC 763
[13] (2004) 2 SCC 510
[14] “(1) All citizens shall have the right– (a) to freedom of speech and expression;”
[15] Refer to V.K. Naswa v. Union of India, (2012) 2 SCC 542
[16] (1986) 3 SCC 615
[17] 25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
[18] In the instant case, appellants were faithful of Jehovah’s Witnesses.
[19] (2018) 2 SCC 574
[20] In terms of Article 32 of the Constitution of India.
[21] Supra Note 19, wherein the petitioner in clubbed WP (C) No. 98/2017, inter alia, prayed, “(a) Frame a national policy to promote and propagate the National Anthem, National Song and National Flag in spirit of Article 51-A to achieve the great golden goals, as set out in the Preamble of the Constitution of India.”.
[22] Shyam Narayan Chouksey v. Union of India, 2016 SCC OnLine SC 1411
[23] Shyam Narayan Chouksey v. Union of India, (2018) 2 SCC 582
(Also refer to Shyam Narayan Chouksey v. Union of India, (2018) 2 SCC 574)
[24] Refer to Shyam Narayan Chouksey v. Union of India, (2018) 2 SCC 574, at p. 581; (“31. Having heard the learned counsel for the parties, we are inclined to modify the orders and direct that the persons who are wheelchair users, those with autism, persons suffering from cerebral palsy, multiple disabilities, Parkinson’s, multiple sclerosis, leprosy cured, muscular dystrophy and deaf and blind be treated not to be within the ambit of the orders passed by this Court.”)
[25]Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615