Patriotism in India fosters a serious debate regarding its characterisation. Anyone who does not agree with the views of the majority is often branded as a traitor. The recent viral video of some movie-goers in Bengaluru being hounded for their refusal to stand during the playing of the national anthem before the screening of the movie, brings to the fore this dilemma on patriotic ideals. People tend to forget that it takes a diverse set of individuals to form a nation. Such a militant patriotic response to a varying understanding of “patriotism” stands against the very core of democracy. In this light, it becomes apposite to delve into whether or not it is mandatory to stand-up during the playing of the National Anthem in a movie-hall. We shall here attempt to answer the question from a legal standpoint.
The 2016 Supreme Court Ruling
In November 2016, in a widely criticized move, the Supreme Court held it to be mandatory for movie-theatres to play the National Anthem before the screening of every movie; and cast upon all cinema-goers the obligation to stand-up during such playing. The bench headed by Justice Dipak Mishra found the order necessary to instil a sense of “committed patriotism and nationalism” in people.
Patriotism and the Fundamental Right to Expression
Patriotism is a very personal sentiment, with individuals having the right to express it in their own way, as has been ingrained in the constitutional right to freedom of expression. The 2016 ruling reeked of forced patriotism which goes against the very grain of freedom of expression.
The analogous reasoning adopted by Supreme Court in Bijoe Emmanuel v. State of Kerala, fortifies this argument. A school in Kerala was ordered to take back three children who desisted from singing because of their conviction that their religion doesn’t permit them to join rituals except in prayer. The Court, while upholding the children’s right to freedom of speech and expression and right to religion categorically held –“…There is no provision of law which obliges anyone to sing the National Anthem…”
The court ruled that it is not disrespectful if a person stands-up respectfully when the Anthem is sung but doesn’t join in singing. The court, however, did not deal with the issue of whether it would be disrespectful to not stand during the National Anthem. The judgment ended with the message – “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.”
The Court in Excel Wear Etc. v. Union of India had held that fundamental rights, under Article 19 of the Indian Constitution, have reciprocal rights. This implies that the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”. Congruently, the right to expression should also embrace the right not to express. The expression of patriotism ought to be left to an individual’s personal choice. A mandate of law would be an underestimation of the institutions of free minds.
Reasonable Restrictions to the Freedom of Expression
Where Article 19(1)(a) guarantees to all citizens the freedom of speech and expression, Article 19(2) allows it to be restricted by an existing law or that made by the State. However, it does not contemplate restriction through any other mechanism. In Bijoe Emmanuel case, the Court clearly laid down that there can be no incursion into the ambit of fundamental rights without statutory backing.
The Court’s recourse to ‘constitutional-patriotism’ to justify the mandatory order in the 2016 judgement was an extra-constitutional principle, to restrict fundamental rights without any constitutional/statutory basis. In the case of Naresh Mirajkar v. State of Maharashtra, the court categorically held that a Supreme Court order cannot be challenged by a writ petition as being in violation of fundamental rights. By insulating itself from its decisions being challenged in writ proceedings for violating Article 19(1)(a) of the Constitution, the court now cannot curtail speech by equating judicial opinions to “law” under Article 19(2). Supreme Court’s attempt to curtail the freedom of expression in the 2016 judgement therefore stood as a blatant judicial over-reach.
Patriotism and Fundamental Duties
Article 51A(a) of the Constitution casts a duty on the citizens to ‘abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem’. However, it does not prescribe specific standards such as being required to sing or/and stand to show respect. Additionally, while there is an inherent compulsion to comply, there is no legal sanction provided for non-performance of such duties.
The Supreme Court, in 2018 judgement of Shyam Narayan Chouksey v. Union Of India, modified the 2016 order to the extent that playing of the Anthem prior to the screening of feature films in cinema-halls is not mandatory, but optional/directory.
With respect to standing-up during any such playing, the court left it on the government to direct the people. It ordered that the people are “bound to show respect as required under executive orders relating to the National Anthem of India and the prevailing law, whenever it is played or sung on specified occasions.”
The executive order issued by the Ministry of Home Affairs reads as follows – “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”.
Simultaneously, during the hearing, Justice D.Y. Chandrachud, who was a part of the Supreme Court bench, made some oral observations questioning the basis for such an imposition. He asked – “Tomorrow, there may be a demand to stop people from wearing shorts and T-shirts while going to cinema-halls, because national anthem is being played. Where is the end for such moral policing? Why should we assume that if you don’t stand during the playing of national anthem, you cease to be patriots?”
The law is silent on the sitting/standing of persons during the playing of the national anthem. Section 3 of the Prevention of Insults to National Honour Act, 1971 reads – “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.” While the law punishes people who intentionally disturb/prevent the singing in an assembly of persons engaging in singing of the national anthem, it does not explicitly constitute not standing-up during the playing of national anthem as an offence.
The Proper Way to Show Respect
The law does not penalise the refusal to stand-up during the playing of the national anthem, but Supreme Court directs that a person should show respect as per the executive orders when national anthem is played or sung. And in consistence with the executive order, one must stand-up during the playing of the national anthem. The Supreme Court’s direction, however, is not blind sighted. It takes into account special circumstances and exempts wheelchair-users, autistic persons, persons suffering from cerebral-palsy, multiple-disabilities, blind, etc. from the ambit of its direction.
The requisite element of respect towards the national anthem is enshrined under Article 51A(a) and echoes in the Supreme Court judgements. However, despite the Ministry Directive, the question remains as to whether or not standing-up constitutes disrespect towards the national anthem, because the freedom to choose the manner in which a person expresses their patriotism is the fundamental right of that person and there is an element of subjectivity to it. It is best left to judgement of the institutions of free minds. Any attempt to encroach upon this choice spells disastrous for democracy.
While the refusal to stand-up during the playing of the national anthem may not amount to an offence under statutory provisions, it can result in the violation of an order of the Supreme Court. At the same time it must be noted that this order does not warrant the intimidation of persons who refuse to stand-up. Such actions are in clear violation of law for no one can take law into their own hands.
There however remains the threat of self-appointed vigilantes looking to uphold the nation’s honour. These incidents of jingoism in the recent past cause serious apprehensions amongst the people. There is a dire need to create awareness about the existing legal position on this point. A legal promulgation by the highest court upholding the right of the people to choose the manner in which they manifest their patriotism is one possible legal solution. Other than that we need to spread awareness and acclimatise people with the existing legal position and sensitise people to have a more open approach to “patriotism” so that this deplorable vigilantism can stop.