A two-judge bench of Supreme Court of India in its interim order in Shyam Narayan Chouksey vs. Union of India in Writ Petition Civil No:855/2016 issued several directions with regard to paying respect to national anthem. After reading so many articles and news reports and hearing public opinions on the subject we feel that it is high time we dwell on it.
I was watching television in my young age when national anthem was played in the channel and suddenly my father stood up in attention and asked me to do so to show respect to the anthem. Later my father taught me the importance of showing respect to the same. I began to stand up whenever I could do so as the anthem is played whether in T.V or radio. But this exercise was discontinued as ages passed. Later at my teenage I went to a local theatre where the anthem was played before movie started and I saw everyone standing up to show respect to it and I too stood up. We stand up in temple, in Court when Judge arrives, in class room when teacher arrives, and also during cremation et cetera. This means that standing up is coloured as an overt act by a human to show respect/honour. During many public functions the audience is asked to stand up while the national anthem is played. Though this brings a feeling of unity and respect to our nation within everyone's mind, my respect to the nation and its values were never deteriorated even when I discontinued standing up for the anthem. I believe that seated down and paying respect to the anthem and standing up and doing the same has no difference. Only part is that the latter has the power of showing others my respect for the nation and also inspiring some by instilling the sense of the so called committed-patriotism and nationalism (as termed by the apex Court).
At "Sense of Law" we always try to look at the logical conclusion of a subject yet not compromising established law. Hence read the post in its entirety to make sure you do not form a biased opinion on the issue.
Some laws on the subject are to be noted here:
The Constitution of India
Article 51A of the Indian Constitution lays down the Fundamental duties where it is stated that it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem. It is a point to note that Fundamental duties are not enforceable as such. However the state can make laws keeping these principles in mind which in one way makes sure that the fundamental duties are covered with and obliged by everyone. In the absence of a law, no one can be punished for curtailing the fundamental duties. By making legislation does not mean that the state can blindly put the codes into a new bottle and try to enforce it. Here one needs the logic of the lawmaker as he has to imbibe the idea of the directives and put the same into the lines of law cleverly so as to pass on its values to the masses. In clear words one can say that the State can make law to honour the national anthem.
The Prevention of Insults to National Honour Act, 1971
Section 2 of the Act speaks of insult to Indian National Flag and Constitution of India. It says that "Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both." Section 3 of the Act speaks of prevention of singing of Indian National Anthem, etc in these words: "Whoever 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." It is clear that the above law do not state about an overt act to show respect. The law makes clear about the acts which defiles national honour and penalises it.
Flag Code of India
It is the flag code of India(2002) where the overt act of standing up to honour the flag and anthem is clearly put to words in the following form: "It is clearly stated that whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a newsreel or documentary the Anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the Anthem." Here we may note that standing is to be avoided when the anthem is played as a part of any film. However the recent order is not about the play of anthem as part of any film. So the stipulation of paying honour to national anthem when it is played by standing in attention is already there in our law since the year 2002.
The Emblems and Names (Prevention of Improper Use) Act, 1950
As the name suggests, the above law speaks of certain improper usages and also the need to obtain permissions of authorities to use national emblems/flag etc.
So after deciphering all the above laws one thing is clear. It is mandatory, whenever the anthem is played or the national flag is shown, for us to stand up in attention to pay honour as per the law. All of a sudden when the apex Court reiterated this aspect there is so much hue and cry with respect to freedom of expression. Cinema hall is undoubtedly a public place and no absurdity can be found in specifying it in the order. It doesn't matter whether one watches an adult-oriented masala movie or a patriotic film. Watching the former type do not make one anti-national and watching the latter do not make one to be called a true Indian. We also noticed a funny comment/post which tells that if the movie theatre catches fire, one will not be able to enter/exit the hall as it will be against the order of Court. I think these are words of someone who has no intuition and common sense. No law will punish you for saving your life and others' life. For that you do not need an explicit explanation or exception in the order of Court.
But still the logic of the order is questioned by majority of people. We can try to deny or prevent an act which may hurt national feelings by making legislations; but how effectively can one make a legislation for enforcing these national feelings is a subtle question. By force you cannot give freedom of speech as it is a natural act which cannot be forbidden. This means we have to enforce freedom of speech by preventing acts which curtail them. In other words enforcing freedom means enforcing prevention of acts against it. Thus if one do not want to wilfully respect or disrespect national anthem by doing an overt act, it is his freedom. The law can only say him not to disrespect the anthem as it is played by doing any overt act which may dishonour it. Now the question remains as to what are the overt acts or expressions which will dishonour the anthem. But the apex Court seem to judge more on the overt act which will honour the anthem.
It should be stated that enforceability of an order makes it a complete one. A mandatory law or order is not strong if it does not prescribe its enforceability. We have a Flag Code which clearly states that one should stand in attention to honour the national anthem/flag, but it does not (nor in any other legislation/order) state the method of its enforcement or the penalty for disobeying the same. In this case the present interim order of the apex Court is to be thoroughly revisited. However since the order is not a final one, we may look forward for a more sound decision at the next hearing of the case, unless the law makers surprises everyone with a new enactment/ordinance for enforcing the order with penal provision.
Having said so much we could tell that the apex Court will always be right had it passed the order by only putting some directives to the Centre to make sure that the Flag Code and other connected laws are followed by every citizen in letter and spirit in every public places wherever it is played including movie halls. But there should not be an element of force as it will be against the true spirits of the nation itself. We all are good citizens with great honour of the nation. We are independent in our thoughts and decisions and we truly love our nation with freedom as we know that this freedom is a fruit of the hard labour of our forerunners in a big freedom struggle. So kindly let us respect our nation freely. Respect is something which should form in one's heart. It cannot be cultivated by force. In clear words, there will be no love and respect out of force.