ANALYSIS OF NATIONAL ANTHEM CASE

Ayushi Bhardwaj

ABSTRACT:

Jana Gana Mana is the National Anthem of India. It was originally composed as BharotoBhagyoBidhata”in Bengali by poet Rabindra Nath Tagore. The first stanza of the song was adopted by the Constituent Assembly as National Anthem on 24th January, 1950. Its formal rendition takes approximately 52 seconds and shortened version takes about 20 seconds to play. But in 1987, an important issue arose before the Supreme court, that whether a person can be compelled to sing the National Anthem contrary to their religious beliefs and faith, guaranteed under Articles 25 and 26 of the Constitution[1]?

INTRODUCTION:

Freedom of speech includes freedom of silence

The prevention of National Honour Act, 1971 is an Act of Parliament of India which prohibits the insult to the country’s national symbols, including the National Flag, the Constitution, the National Anthem and the map of India including contempt of India Constitution. As provided in Section 3 of the Act, whoever intentionally  prevents the singing of Jana Gana Mana 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 under the Part- IV of the constitution under Article 51-A.

In Bijoe Emmanuel And Ors. vs State Of Kerala And Ors[2], the Hon’ble Supreme Court held that expulsion of school children for not singing the National Anthem constituted a violation of the Right to freedom of expression guaranteed under Article 19(1)(a) and Freedom of religion under Article 25 of the constitution since it was against their religious faith as Jehovah’s Witnesses.The Court reasoned that a limitation on the right to freedom of expression must be based on a law with statutory force. Yet, there were no provisions of the law that obligated individuals to sing the national anthem and the State of Kerala’s Department of Education lacked statutory force to require school children to participate.This case, however, did not deal with the issue of whether it would be disrespectful if a person chose not to stand during the National Anthem.

In Shyam Narayan Chouksey v. Union of India[3]the apex court of India passed a judgment compelling the display of the national anthem before every screened movie and making it mandatory for all patrons to rise for the duration of the feature presentation (containing the national anthem), which has been hotly debated within the legal fraternity as well as amongst the common man of the country and has raised questions regarding the degree of nationalism the apex court wishes to inculcate within India. In 2003, the petitioner moved to Madhya Pradesh High court accusing Director- producer Karan Johar of insulting National Anthem in his movie “Kabhi Khushi Kabhi Gham” and further stated that people in the movie hall did not stand when the anthem was played. The Supreme Court, in its wisdom, decided that the recommended orders by the side of petitioner be implemented. The recommendations proposed, thus included the point that every patron must stand while the national anthem is played in the beginning and the doors of the theatre hall must be closed and no one will be allowed to leave. The court further directed that no commercial exploitation of the national anthem should be done.

Recently, the interim order made by the Supreme court in previous case was modified in January 2018 holding that it is not mandatory for the cinema halls to play 52-second national anthem. However, if it is played, patrons in hall are bound to stand up and show respect. “Playing of the anthem is directive, but showing respect is mandatory” Chief Justice Deepak Misra orally observed.

RULES AND MANDATION OF NATIONAL ANTHEM IN OTHER COUNTRIES:

JAPAN
The Japanese, who have had a rocky relationship with overt displays of nationalism since World War II, passed a law that officially established their national flag and anthem, Kimigayo, only in 1999 but had no provisions for its use. This  has resulted in unexpected problems.In 2003, Tokyo passed a regulation that required school or board officials to record the names of teachers who did not stand and sing the national anthem. As a result, more than 500 teachers in Tokyo have been disciplined for refusing to stand and sing the national anthem. Some have lost their jobs while others were let off with warnings. Some of the other sanctions include re-education courses and pay cuts.

MEXICO
In Mexico, according to the Law of the Coat of Arms, Flag, and National Anthem, all schools and universities are supposed to honour the flag on Monday mornings, and the beginning and end of school terms and are expected to wear a different uniform, generally all white.

ITALY
In Italy, the national anthem is played only on sporting events, at formal state ceremonies and at public rallies attended by the President. No one is required to sing along or behave in some particular way while the national anthem is being played. However, Italians are required to stand and show respect to any national anthem.

THAILAND
Thailand’s love for its anthem is more fervid than most. It is played every day on television at 8 am and 6 pm. However, there is no law regarding the national anthem in Thailand. It’s just an unofficial convention.

UNITED STATES
The convention in the United States is pretty clear: when the national anthem is being played, whether or not the American flag is displayed, all individuals should face the flag/the source of music and stand at attention with the right hand over their hearts. But the United States does not discipline its citizens for failing to stand up.

CONCLUSION:

Anthem being made optional to be played in movie theatre is one thing and every citizen’s duty to respect it is quite another. The respect for national identities shall remain intact even without the ‘Judicial order’. The court also has a duty to not encroach upon others domain, notwithstanding the fact that the executive or for that matter the legislature was not averse to its legislating on such particular subject.


[1]Bijoe Emmanuel And Ors. vs State of Kerala And Ors (AIR 1987 SC 748)

[2]AIR 1987 SC 748

[3]AIR 2018 SC 357