India: Are we legally bound to stand during the national anthem? (Saurav Datta)

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Are we legally bound to stand during the national anthem?

By Saurav Datta | October 4, 2014

On 23 September, after more than a month’s incarceration, M Salman, a resident of Thiruvananthapuram, was granted bail by the Kerala High Court.

According to news reports, he was arrested on 20 August from his house after complaints about his and his friends’ behavior in a state-owned movie theatre. The group did not stand up when the national anthem was being played before a movie, the reports said, while Salman was also accused of “hooting” while it played. Salman was charged with sedition under Section 124A of the IPC, and was also charged under Section 66A of the IT Act, for allegedly posting derogatory comments about the national flag on Facebook.

The Indian Express quotes Harihara Sharma, who was part of Salman’s group in the theatre, as saying that other people in the theatre “got into an altercation” with them for not standing up during the anthem, even though the friends had previously been to the same theatre, and had not stood up at that time either.

According to the same report, Salman’s lawyer said that the district sessions court had declared that his “offence was more serious than murder” at his previous bail hearing, at which he was denied bail. To secure bail from the high court, Salman had to pay a surety of Rs 2 lakh and surrender his passport, and will now have to appear before the investigating officer twice a week.

The flurry of allegations and counter allegations raises a question: what exactly does the law say on the matter? Section 3 of the Prevention of Insults to National Honour Act states:

Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances 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.

The Home Ministry’s Rules, which carry the force of law and are supposed to be read as a part of the Act, mandate that one must stand to attention whenever the anthem is played. However, no specific penalty is prescribed in these rules for not standing up. Certainly, nothing in the text of the law mandates a charge of sedition—an aspect of India law already severely criticised for being draconian—for not standing up during the anthem.

Established Indian case law is of limited use in examining the issue. Behaviour during the national anthem has been adjudicated only once in the past, in Bijoe Emmanuel & Ors v. State of Kerala. In its 11 August 1986 decision, the Supreme Court held that the freedom of religion protected the appellants—children belonging to the Jehovah’s Witnesses denomination of Christianity—from penal action if they declined to join the national anthem when it was sung daily in their school. The judgement noted that though the children didn’t join in the singing of the national anthem, “they used to stand up in respectful silence” when it was sung.

This protection not to sing was granted on the basis of freedom of religion, since members of the denomination are forbidden by their religious tenets from singing the national anthem of any country, or swearing allegiance to any entity other than Jehovah. No cases have examined the question of not singing—or, for that matter, not standing up—owing to political convictions.

Given this legislative and jurisprudential void, it might be instructive to consider case law from another country. In a 1989 United States case, Texas v. Johnson, the Supreme Court of the United States struck down a law prohibiting the desecration of certain venerated objects, including state and national flags, and forbade the state from criminalising or punishing any action that did not satisfy the majoritarian concept of either allegiance to the state or respecting national honour. These acts, the court held, were protected by the First Amendment, which guarantees citizens the freedom of speech—American law does not cite a “reasonable restrictions” clause on these freedoms, as Indian law does.

Another, earlier, US case, 1919’s Abrams v. United States, offered a forceful argument against the suppression of ideas by those in power, and supported the permission of dissent. The case dealt with the distribution of pamphlets criticising US troop deployment in Russia during the Russian Civil War of 1918. In his dissenting opinion at the US Supreme Court, now widely held as a standard for such cases, Justice Holmes wrote:

If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. … But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

It would perhaps be too optimistic to hope for such an emphatic statement from an Indian court in support of freedom of speech. But Salman’s case underscores the long-felt need for courts to weigh in and stem the executive’s tendency to clamp down on freedom of expression, which should include the freedom to dissent.

The questions here are not of threat to national integrity or security—merely of behavior during the playing of the anthem. The court should take a significant stride ahead of Bijoe Emmanuel & Ors and unequivocally state that citizens have the freedom to not join during the singing of the national anthem, as well as to not stand, not just because of their religious beliefs, but also because of their political convictions and preferences. Anything less would suggest that India has only a simulacrum of democracy.

Saurav Datta teaches media law and jurisprudence in Mumbai and Pune. His Twitter handle is @SauravDatta29.

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