Standing up for National Anthem: What the Supreme Court has ruled
Context- An executive magistrate in Srinagar has sent 11 men to jail after they were detained for allegedly not rising for the National Anthem at an event on June 25 where J&K Lt Governor Manoj Sinha was present.
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The men were produced before the Executive Magistrate on July 3, who directed the SHO of police station Nishat Srinagar “to detain the…accused in Central Jail Srinagar for 7 days from today and conduct the proceedings of the case under law”.
The order noted that “there is every likelihood that they may commit breach of peace and disturb public tranquillity if released.”
Sections under law
- Section 107 of the Code of Criminal Procedure, 1973 allows an Executive Magistrate to ask any person who is “likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity…to show cause why he should not be ordered to execute a bond…for keeping the peace” for up to a year.
- Section 151 CrPC allows a police officer who knows of a design to commit a cognizable offence to “arrest, without orders from a Magistrate and without a warrant, the person so designing”.
- In legal terms, to be “bound down” means to be required to appear before the investigating officer or the court on a given date. The expression is usually used in court orders to indicate that an accused is “bound” by surety or personal guarantee to appear before authorities.
Bijoe Emmanuel case
- The law around alleged disrespect to the National Anthem was laid down by the Supreme Court in its 1986 judgment in Bijoe Emmanuel & Ors vs State Of Kerala & Ors.
- The court granted protection to three children belonging to the millenarian Christian sect Jehovah’s Witnesses, who did not join in the singing of the National Anthem at their school. The court held that forcing them to sing the Anthem violated their fundamental right to religion under Article 25 of the Constitution.
- The children, siblings named Bijoe Emmanuel, Binu, and Bindu, who were students of Classes 10, 9, and 5 respectively, were expelled from NSS High School, run by the Hindu organisation Nair Service Society, on July 26, 1985.
- In its August 11, 1986 judgment, the Supreme Court said that “Article 25 (“Freedom of conscience and free profession, practice and propagation of religion”)…[was] incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.”
- Standing up respectfully when the National Anthem is sung — as the children had done — but not singing oneself “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…[under] the Prevention of Insults to National Honour Act, [1971],” the court said.
- Section 3 of the Act prescribes jail up to three years and/ or a fine for “intentionally prevent[ing] the singing of the National Anthem or caus[ing] disturbance to any assembly engaged in such singing”.
- The court held that the children’s expulsion as a result of their “conscientiously held religious faith…was a violation of their Fundamental Right to freedom of conscience” and to freely profess, practise and propagate their religion.
The debate revisited
- The Supreme Court revisited the matter in Shyam Narayan Chouksey vs Union of India (2018). While hearing the case, the court had, on November 30, 2016, passed an interim order that “All the cinema halls in India shall 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.”
- The court had also ordered that “entry and exit doors shall remain closed” when the Anthem is played, and that “when the National Anthem shall be played…it shall be with the National Flag on the screen”.
- However, in its final judgment in the case passed on January 9, 2018, the court modified its 2016 interim order. “The order passed on 30th November, 2016, is modified to the extent that playing of the National Anthem prior to the screening of feature films in cinema halls is not mandatory, but optional or directory,” the court said.
Conclusion- The court’s decision to modify the 2016 order came after it was informed by the Centre that a 12-member inter-ministerial committee had been formed to frame guidelines for occasions on which the National Anthem will be played or sung in theaters.
Syllabus- GS-2; Laws; Judicial Activism and Restraint
Source- Indian Express