On July 3 in Jammu & Kashmir (J&K), there were conflicting reports of 14 policemen/persons having been arrested/suspended for allegedly disrespecting the national anthem. However, the Srinagar police in a tweet clarified that 12 persons had been generally bound down for good behaviour under sections 107 and 151 of the Code of Criminal Procedure (CrPC).

Section 107 of the CrPC empowers the executive magistrate to order a person to execute a bond for keeping peace and public tranquillity for a specified duration not exceeding one year, while Section 151 of the CrPC gives preventive detention powers to the police without a warrant from a magistrate, in case they have knowledge of any design to commit a cognisable offence by the accused.

The alleged crime committed by these 12 people: not rising for the national anthem at an event called ‘Pedal for Peace’ organised by the J&K Police on May 25. J&K lieutenant governor Manoj Sinha was in attendance, and it is reported that after he took serious note of the incident, proceedings were initiated against these people.

Pursuant to an order by the Srinagar executive magistrate, on July 3, the accused were sent to the Srinagar central jail under preventive custody.

Offence of disrespecting the national anthem

Section 3 of the Prevention of Insult to National Honour Act, 1971 provides for the punishment of imprisonment of up to three years and/or a fine for anyone preventing the singing of the national anthem or causing disturbance to any assembly engaged in singing the national anthem.

Interestingly, neither does the said statute provide any provision for an offence regarding ‘disrespect’ to the national anthem, nor does it define what entails disrespect to the national anthem. What the Act criminalises is the prevention of the singing of the national anthem or causing disturbance to an assembly engaged in the singing of the national anthem – plain and simple!

It is a fundamental tenet of criminal jurisprudence that penal statutes are to be strictly construed. Thus, a law that defines any offence and provides for any punishment cannot be given a broad interpretation, and in case of any ambiguity, the accused under such a provision is to be acquitted rather than being held guilty.

Therefore, on the issue of whether refusing to sing or stand for the national anthem amounts to an offence under the Prevention of Insult to National Honour Act or not, I would argue for the latter.

The Supreme Court in Bijoe Emmanuel & Ors. (1986) had come to the rescue of three children belonging to the Jehovah’s Witnesses sect who were suspended from their school for not singing the national anthem, holding that forcing the children to sing the national anthem violated their right to religion under Article 25 of the constitution.

Though Bijoe Emmanuel categorically held that there is no provision of law which obliges anyone to ‘sing’ the national anthem, it did emphasise the fundamental duty of citizens under Article 51-A (a) of the constitution “to abide by the constitution and respect the national flag and national anthem”.

In essence, the Supreme Court held that it would not be disrespectful to the national anthem if a person stood respectfully when it was sung but did not join the singing.

In recent times, the controversy regarding standing for the national anthem resurfaced when in 2016, the Supreme Court in Shyam Narayan Chouksey (2018), passed an interim order directing all movie theatres to mandatorily play the national anthem before the start of a film and further directed that everyone present in the theatre must stand to show respect.

The purported reason behind the direction was to “instil committed patriotism and nationalism” and “reflect love and respect for the motherland”.

Why it was felt mandatory for the audience to project patriotism and nationalism before watching a steamy Emraan Hashmi romance or a gritty Tom Cruise thriller is beyond my understanding. To the contrary, I would argue that such an imposition trivialises the value and dignity of the act of showing respect to the national anthem.

Thankfully, good sense prevailed and the bizarre interim order in Shyam Narayan Chouksey was modified in 2018, and the playing of the national anthem in theatres was made optional.

But in the interim (and sometimes even after the order was made optional), there were several untoward incidents reported in theatres, where overzealous patriots and self-proclaimed nationalists heckled and physically and verbally abused their fellow citizens for not sharing their own enthusiasm when the national anthem was played, to the point where even a wheelchair-bound moviegoer was not spared for not standing up during the playing of the national anthem!

In Dr. Tawseef Ahmed Bhatt (2021), the J&K high court held that not standing up while the national anthem is being sung, or standing up but not singing the national anthem along with members of an assembly engaged in such singing, may amount to disrespect to the national anthem and a failure to adhere to fundamental duties enumerated in Part IVA of the constitution of India.

But the same is not an offence as defined under section 3 of the Prevention of Insult to National Honour Act. It was further held by the J&K high court that the fundamental duties enumerated in Part IVA of the constitution are also not enforceable in law and the breach of such duties is not an offence under any penal law of the state.

Compelled speech in a democracy

Article 19 (1) (a) of the constitution guarantees to the citizens the fundamental right to freedom of speech and expression. The state can curtail this right by imposing reasonable restrictions on multiple grounds, like in the interest of the sovereignty and integrity of India, the security of the state, public order, decency or morality, etc. as provided under Article 19 (2).

The existence of these restrictions are certainly essential in a democracy, especially in today’s day and age, when one gets to hear instances of hate speech targeted against minorities everyday by no less than sitting parliamentarians and lawmakers shouting slogans like “desh ke gaddaron ko, goli maaro saalon ko” [shoot the traitors to the nation] and calling for the economic boycott of Muslims, and cow vigilantes forcing their victims to shout ‘Jai Shri Ram’.

But how often these restrictions on free speech or penal consequences on account of making hate speech are imposed on members or supporters of the current regime with reportedly majoritarian tendencies is a discussion for some other time.

It is relevant to note that the right to freedom of speech and expression under Article 19 (1) (a) is a multi-faceted freedom, and includes within it several aspects like the right to gender identity (as held in the NALSA judgement (2014) of the Supreme Court), as also the right to ‘silence’, which interestingly is the converse of ‘speech’.

In this context, it is important to highlight the aspect of ‘compelled speech’ or ‘forced speech’, in which the state compels the person to make certain statements that the person may not otherwise want to make. This forced speech is in the form of a ‘must carry’ provision in a statute.

An example of compelled speech is the statutory requirement to put disclaimers on cigarette packets that smoking is injurious to health and causes cancer. Such compelled speech cannot be a violation of freedom of speech and expression, as long as the ‘must carry’ provision furthers informed decision-making, which is considered the essence of freedom of speech and expression as observed by the Supreme Court in Motion Picture Association (1999).

Interestingly, the Supreme Court in Kaushal Kishor (2023) observed that if the state compels a citizen to carry out propaganda or a point of view contrary to their wish, then it may be a restriction on their freedom of speech and expression, which must be justified as per Article 19 (2) of the constitution.

It is in this context that the act of singing or standing for the national anthem must be viewed, in particular for the J&K region. In the absence of any ‘law’ mandating the citizens to sing or stand for the national anthem, it is difficult to justify the act of compelling citizens to sing or stand for the national anthem in terms of the restrictions under Article 19 (2).

At best, there is an “Orders Relating To The National Anthem Of India” issued by the home ministry, which states that whenever the national anthem is sung or played, the audience shall stand to attention. But interestingly, the same order also makes an exception that when the national anthem is played in the course of a newsreel or documentary, the audience is not expected to stand.

In any event, it is debatable whether the said order by the home ministry can be considered a “law” as understood in the context of Article 19 (2) of the constitution and especially to attract the penal provisions of the Prevention of Insult to National Honour Act.

In Shyam Narayan Chouksey (2018), the Supreme Court in its final judgement observed that the Union government had constituted an inter-ministerial committee on the playing/singing of the national anthem vide an order/notification dated May 5, 2017.

The committee was to give recommendations regarding the regulation of playing/singing the anthem and suggest changes in the Prevention of Insults to National Honour Act, or in the Orders Relating to the National Anthem of India, within 6 months. But nothing conclusive has been reported by the said committee till date.

Similarly, a private bill, i.e. the Prevention of Insults to National Honour (Amendment) Bill, 2019 was introduced by Parvesh Sahib Singh, a Lok Sabha MP, with the intention to bring the intentional act of disrespecting the national anthem within the purview of section 3 of the Prevention of Insults to National Honour Act, but the same did not pass muster.

Role of dissent in a democracy

Another essential component of Article 19 is the right to protest peacefully or to make one’s grievances known against the prevailing policies of the government in a non-violent manner, a right which assumes significance in any constitutional democratic setup.

In recent times, sports personalities across the globe have devised the form of protest by kneeling or ‘taking the knee’ while the national anthem is played, to protest against growing socio-economic or political injustices in their respective countries.

In 2016, when the NFL quarterback Colin Kaepernick started kneeling during the American national anthem to protest against racial injustices in the US, it evoked strong criticism from even the then-President Donald Trump, who in his usual histrionic outburst, called for Kaepernick’s removal from the field and sought for him to be fired from the NFL.

Not singing or standing for the national anthem in protest is as innocuous an act as a peaceful protest can get. Ultimately, the idea behind any protest or dissent is to let those in power consider one’s grievances and to assert one’s legal right.

In a public speech in 2020, the current Chief Justice of India, Justice D.Y. Chandrachud, had termed dissent as the “safety valve of democracy” and further asserted that labelling dissent as “anti-national” or “anti-democratic” strikes at the heart of deliberative democracy.

In the forthcoming weeks, as the Supreme Court gears up to hear the Article 370 abrogation case, the eventual verdict in the case might very well be a watershed moment in the chequered history of India’s attempt in trying to sincerely integrate J&K with India.

More importantly, it would also mark the guarantees of protection under the constitution to Kashmiris while attempting their integration with mainland India, as well as the constant struggle to uphold and extend the fundamental rights enshrined in the constitution in its true letter and spirit to the Kashmiri populace.

It is apposite to remind ourselves from time to time the role of the constitution and its values, which is best described by this courtroom exchange between the Late Justice Madhav Reddy and Late K.G. Kannabiran, senior advocate, human rights activist and co-founder of the People’s Union for Civil Liberties.

During a case involving an alleged Naxalite, when Justice Reddy asked advocate Kannabiran, “Why should Naxalities who do not believe in the Constitution take shelter under it?”, advocate Kannabiran replied:

“When such issues come before the court, it is your values and not their values that are on trial. It is the values enshrined in the constitution and the values of the state that are under test.”

(Harisankar Mahapatra is a lawyer practicing in the courts of New Delhi. Courtesy: The Wire.)