As A Young Lawyer, Why I Believe The Anthem Controversy Is Unfounded

Posted by Kunal Basu in Society
December 4, 2016

A legal and constitutional furore seems to have enveloped the Indian judiciary once again. After the 2014 NJAC controversial issue appertaining to the executive’s so-called ‘primacy’ role in appointment of judges, the mandatory order of the Indian Supreme Court in enforcing the compulsory playing of the Indian national anthem in all movie halls has raised many a prominent eyebrow within the legal fraternity.

And for all the wrong reasons altogether.

In the landmark case of ‘Bijoe Emmanuel vs. State of Kerala’ (1986 3 SCC 615), the Supreme Court of India had clearly stated that the right to free speech under Article 19(1)(a) of the Indian Constitution is also inclusive of the statutory right to silence as well. Every citizen is mandatorily obliged to respect the national anthem by standing up to attention when the same is played. Even where the national flag is hoisted on varied ceremonious occasions, there exists a legal obligation of every Indian citizen to stand up to attention in respecting the same. There is absolutely no doubt as to the constitutional effect of that statement.

Patriotism is one thing. Compliance of law is another. A man can be patriotic and still not abide by law. Be that as it may, the Constitution of India still remains the ultimate law of the land. All six fundamental rights of individuals Indian citizens have stemmed out from the judicial interpretation of Articles 14-32 of the same. But correct interpretation of judicial precedents and constitutional statutory law must be read in pari materia together. Glove-in-glove; hand-in-hand.

No one can forget the 1998 Uphaar tragedy where a fire broke out in the cinema halls, killing scores of people trapped inside. “Border” was a patriotic movie all right. But was it patriotic to seal off all the doors that led to the deaths of so many people. It wasn’t at all. The 18-year old trial of the Ansal brothers might have just got over very recently. Yet many people who suffered losses in the fire that claimed their families’ lives are yet to receive their due from the State. Justice delayed is justice denied. Isn’t it? In reverting back to this so-called controversial judgement, all that India’s apex judiciary has merely said is that the entry doors to the cinema hall be only closed. Not locked.

Prima facie the above, it appears that the Court had unleashed old ghosts from the closet once again by incorporating this rule. But isn’t it also true that this step was taken to prevent unruly elements from disturbing the cinema-goers seated in the hall? If a door is bolted, locked or even sealed off tightly, it is, but one thing. The public has every right to say that the court had acted erroneously in passing judgement, as a possible contingent repetition of the Uphaar tragedy cannot altogether be ruled out completely. But if the same door is merely closed or even left ajar and private guards posted to avoid uncalled nuisance or any unforeseen public unruliness, that is another thing altogether. A man can freely walk out of the closed doors by merely asking the security personnel stationed there to permit him to pass. It’s not like a person is falsely imprisoned within a movie theater against his will or without his consent. Not at all.

Entry rights are always complemented with exit rights too. The law exists to curtail unlawful activity and public nuisance, not to facilitate it. And operate to detriment of its subjects.

Whenever any occasion arises to play the national anthem, the same is mandatorily telecast on an All-India basis. Whether through radio, public screens or even otherwise. Even where a soldier or constitutional functionary vacates life or is permanently absent on account of his or her untimely demise, the national anthem is played and the Indian flag lowered at half-mast to homage respect to the departed. There is no exception to this statutory rule, save for certain common non-public functionaries such as martyred soldiers or Army personnel.

Every individual can watch the live telecast of the same in the comfort of their homes on TV. The playing of the national anthem is a Directive Principle of State Policy enshrined under Article 51 (a) of our Constitution. This provision of law merely states that every citizen has a fundamental duty to respect the Indian national anthem and national flag.

Section 2 of the 1971 Prevention of Insults to National Honour Act categorically defines eight instances that constitute dishonour to the Indian national flag. Nowhere is expressly or implicitly mentioned in this statutory legal provision that the act of not standing or even not singing the Indian national anthem is  ‘dishonour’ and hence punishable under the Act. Even the 2002 Flag Code of India is silent on this issue.

As individuals, it is also arguable that each of us are also entitled to privacy guaranteed to us within our dwelling houses. Whether we choose to stand up or remain seated is purely a matter of individual discretion. So long as disrespect is not shown to the flag in any way (such as published derogatory social media posts desecrating the flag, or even otherwise), there exists no legal obligation by the Indian State to intrude into an individual’s privacy. What matters more is the qualitative emotions of respect displayed by an individual towards the Constitution and the flag, rather than an overall quantitative output of public masses turning up at social or constitutional gatherings to pay respects to the same.

There appears to be be some talk on amending the 1952 Cinematographic Act to include provisions for making people stand up to attention when the national anthem is played. But till the same is enforced, why not comply with court orders? It is not possible for cinema owners to enforce court orders on all present movie-goers, as the same would most probably lead to a riotous situation by unwilling persons. At best, stringent monetary penalties could be imposed on the deviant errant parties, no further.

As a young lawyer, I would kindly and most humbly request my fellow legal brethren and members of the public to carefully read the court judgement before passing adverse opinions on the same. There is no error of law in the judgement made by Court. But I shall be very happy to be contradicted on the same, provided justifiable grounds exist for doing so.