by Sujoy Chatterjee

The National Football League (NFL) in the U.S. has been in the news of late, for football players allegedly disrespecting the U.S. national anthem by kneeling/sitting/silently demonstrating during the playing of the national anthem before kick-off. There is a raging debate in the U.S. on, amongst others, whether dissent/protest during the national anthem is unpatriotic and whether such acts are legally protected by, inter alia, First Amendment rights and precedents such as West Virginia State Board of Education v. Barnette.

In India, we have been grappling with somewhat related matters for quite some time, albeit in our legal framework. However, unlike in the U.S. where the debate appears to have shifted to acceptable forms of dissent/protest, in India we are still ascertaining the contours of how to respect our National Anthem and National Song. Over the past few decades Indian Courts have shed light on several legal aspects surrounding these songs, the most significant of which being that singing is not a mandatory requirement for showing respect to the National Anthem. More recent judicial determinations have turned down the daily playing/singing of the National Anthem in court complexes, and have even recognized that the National Song does not enjoy the same legal status as the National Anthem in our Constitution.

In this context, the much-discussed judicial Orders[1] directing the compulsory playing of the National Anthem and (and even singing) the National Song appear to have created some inter se tension amongst judicial precedents. Much has already been written on the correctness of these Orders. This post focusses on how Courts have dealt with the National Anthem and the National Song in the past, and attempts to identify some key points which might resolve the apparent contradiction between the Orders and prior precedents.

Bijoe Emmanuel v. State of Kerala (1986)

Three children were expelled from school for not singing the National Anthem during the morning assembly. The children would otherwise stand respectfully and in silence when the National Anthem was sung; the bone of contention was limited to their act of not singing the National Anthem. Their expulsion was challenged before the Kerala High Court but to no avail, and the matter reached the Supreme Court in appeal.

The Supreme Court noted that Article 51A(a) of the Constitution cast a fundamental duty on each citizen to, inter alia, abide by the Constitution and respect the National Anthem. The Court interpreted “respect” broadly and opined that, “Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing.” The Court also discussed Section 3 of the Prevention of Insults to National Honour Act, 1971 under which preventing the singing of the National Anthem or causing disturbance to any assembly engaged in such singing is a punishable offence. The Court was of the view that, “Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing.”

Based on its aforesaid analysis, the Court concluded that “there is no provision of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing.” In fact, the Court held that the children’s expulsion from their school for not joining the singing of the National Anthem though they respectfully stood up in silence when the Anthem was sung was violative of their fundamental right to freedom of speech and expression under Article 19(1)(a), and that such expulsion could not fall under any of the restrictions to free speech as specified under Article 19(2).[2] Accordingly, the school was directed to re-admit the students.

Karan Johar v. Union of India (2003)

The Madhya Pradesh High Court, in a public interest litigation titled Shyam Narayan Chouksey v. Union of India, had directed that the film “Kabhi Khushi Kabhi Gham” would not be shown in any theatre, unless a scene depicting the singing of the national anthem was deleted. The rationale, as discerned by this author, was broadly that the film had dramatized the national anthem for commercial use and that the fictional characters/audience in the scene not standing up immediately for the national anthem ran contrary to the ratio in Bijoe Emmanuel.

On an appeal filed by the director and producers of the film, the Supreme Court took note of the Orders relating to the National Anthem of India, issued by the Ministry of Home Affairs, Govt of India. Clause 1 of the General chapter of the Orders provides that the audience in a theatre is not expected to stand when the National Anthem is played in a film as standing is bound to interrupt the exhibition of the film would create disorder and confusion rather than add to the dignity of the Anthem. In effect, the Orders recognised that there was no prohibition on including the National Anthem in a film.

Relying on the said Orders of the Government of India, the Supreme Court set aside the order passed by the Madhya Pradesh High Court in Shyam Narayan Chouksey v. Union of India.[3]

Hon’ble Shri Rangnath Misra v. Union of India (2003)

Former Chief Justice of India Rangnath Misra had, vide letter dated 18.03.1998 addressed to the then Chief Justice of India, drawn attention to, inter alia, the State’s obligation to educate its citizens about their fundamental duties, such that a proper balance between rights and duties may be achieved. The former CJI had requested that his letter may be treated as a writ petition in public interest. The letter was converted to a writ petition and registered.

During the hearing in the matter on 09.04.2001, the Court felt that the following, amongst other, issues would require adjudication:

“1. Whether legally obliging the singing of National Anthem in an assembly by all those present in the assembly when National Anthem is sung is unconstitutional?

“2. Does the judgment in Bijoe Emmanuel vs State of Kerala require reconsideration?”

In view of these identified questions, the matter was referred to a Constitution Bench of 5-Judges.

However, the Constitution Bench which assembled on 22.11.2001 noticed that the letter sent by the former CJI was general in nature and did not specifically mention the obligation to sing the National Anthem or the judgment in Bijoe Emmanuel. In these circumstances, the Constitution Bench recalled the order dated 09.04.2001 and referred the matter back to a smaller Bench.

The matter was finally disposed of on 31.07.2003, with a general observation that the Govt of India was considering the recommendations made by the Report of the National Commission to Review the Working of the Constitution, which contained, inter alia, a report of the ‘Justice J.S. Verma Committee on Operationalization of Fundamental Duties’. The Verma Committee had stated, amongst others, that “The element of compulsion in legal sanction when combined with the natural urge for obedience of the norms to attract social approbation would make the citizens willing participants in the exercise. The real task, therefore, is to devise methods which are a combination of these aspects to ensure a ready acceptance of the programme by the general citizenry and the youth, in particular.”

Azmat-E-Rasool Foundation v. State of Rajasthan (2015)

An order directing all students of Government Middle and Higher Secondary Schools in Rajasthan to compulsorily participate in the singing of the National Song was challenged on the ground that singing of the National Song amounts to worshiping a goddess which is prohibited under the petitioner’s religious community. The challenge was rejected on the ground that the edited/approved version of the National Song which was to be sung did not mention any goddess or religion. And had no religious overtones.

A perusal of the judgment suggests that Bijoe Emmanuel may either not have been cited or pressed before the Bench. In fact, there is no discussion on mandatory singing vis-à-vis fundamental rights, barring a stray statement that “no fundamental right of any citizen is violated if he is required to sing” the National Song).

Suresh Kumar Gupta v. State of U.P. (2017)

A practicing Advocate filed a petition before the Allahabad High Court, contending that there is a moral and constitutional obligation to have a daily recital of the National Anthem inside the premises of the High Court, District Courts, Tribunals and other such establishments in Uttar Pradesh.

A Division Bench of the Allahabad High Court noted at the very outset that the petition appeared to be inspired by the Supreme Court’s order dated 30.11.2016 regarding playing of the National Anthem at cinema halls. However, the Court observed that the Order dated 30.11.2016 did not provide any indication for such singing either inside Courts or outside. The Court held that neither was there any mandate in law for the petitioner’s demand nor is there such a practice or tradition anywhere in the country.

Accordingly, the petition was dismissed, with the Court observing, “To respect the National Anthem is to believe in it and believe in the true ideals of our Constitution. A performance of a daily singing of the National Anthem in Courts may not by itself be a reflection of Constitutional respect.”

Ashwini Kumar Upadhyay v. Union of India (2017) 

A PIL seeking a national policy to, inter alia, promote and propagate the National Song was rejected by the Supreme Court on the ground that there is no fundamental duty cast on a citizen under Article 51A(a) of the Constitution with regard to the ‘National Song’.[4] However, one limited aspect of the PIL i.e., “ascertain the feasibility of singing/playing the National Anthem in schools on every working day”, has been kept alive and the matter has been tagged with the PIL where directions for playing the National Anthem in cinema halls was passed.

What Lies Ahead?

There are reports in the media that authorities in certain states had allegedly issued notices/orders making the singing of the National Anthem and/or the National Song compulsory in educational institutions run or funded by the State. Even otherwise, there is at present considerable debate in the country on whether there should be mandatory playing and/or singing of the National Anthem and/or the National Song, can it ensure that patriotism is instilled in our citizenry, whether patriotism as a value should at all be instilled through force, whether there can be any moral objection to playing/singing songs which celebrate our country, etc.

However, from a purely legal perspective, this debate is more nuanced and pointed – the author is of the view that the crux lies in the following questions (i) while the extant legal position is that the National Anthem stands on a separate legal footing as compared to the National Song, what, if any, is the legal status of the National Song; (ii) whether the mandatory playing of the National Anthem and/or the National Song, at cinema halls, schools, government offices, etc., is a matter for Courts to decide or a purely policy decision, and whether there is any principled illegality in such a mandate; and (iii) in view of certain authorities allegedly directing citizens to mandatorily sing the National Anthem or the National Song, whether there will be another attempt, and whether such attempt would have sufficient grounds, for re-assessing the correctness of the ratio in Bijoe Emmanuel, i.e., that citizens can show respect to the National Anthem even without singing it. A legal battle on these issues is bound to throw up interesting propositions on rights, duties, nationalism, etc.

(The author is an Advocate based out of New Delhi)

[1] On 30.11.2016, the Supreme Court directed that all cinema halls across India must play the National Anthem before every feature film. On 25.07.2017, a Single Judge of the Madras High Court directed that all schools, colleges, universities, educational institutions, government offices and institutions, private companies, factories and industries across Tamil Nadu must play and sing “Vande Mataram”.

[2] Independent of its findings under Article 19(1), the apex court further held that the expulsion violated the students’ right to practice and profess their religion under Article 25(1). However, Article 25(1) is beyond the scope of the present post and hence the same is not discussed herein.

[3] The Supreme Court’s direction that all cinema halls across India must play “Jana Gana Mana” before every feature film has been passed in a petition filed by the same Shyam Narayan Chouksey. Dipak Misra, J., the Presiding Judge of the Bench which passed this direction, was a part of the Bench of the Madhya Pradesh High Court which passed the order in Mr. Chouksey’s petition against the National Anthem sequence in ‘Kabhi Khushi Kabhi Gham’.

[4] Dipak Misra, J., the Presiding Judge of the Bench which rejected this prayer, was also the Presiding Judge of the Bench which passed the direction that all cinema halls across India must play “Jana Gana Mana” before every feature film.