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National Anthem – Prevention of Insults to National Honour Act, 1971

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Supreme court in its latest decision (Jan 2018)
has made it optional for Cinema Halls, to play the National Anthem before the
opening of the show. Previously through an Interim Order in November 2016,
Supreme court had made it mandatory for Cinema halls to play National Anthem
before every show. Supreme Court in its 2016 order observed that this practice
will instil Patriotism and nationalism among the citizens.

D.Y. Chandrachud, one of the three judges of the
Bench, which gave the decision, remarked that there was no need for an Indian
to “wear his patriotism on his sleeve” and earlier he had also doubted the
wisdom of asking patrons of cinema to visibly demonstrate their patriotism each
time they entered a theatre to watch a film.

The Prevention of Insults to National Honour Act (1971)

To abide by the Constitution and respect its
ideals, the national flag and the national anthem. The Prevention of
Insults to National Honour Act (1971) prevents disrespect to the Constitution
of India, the National Flag and the National Anthem. This act extends to whole
of India.

According to Prevention of Insults to National Honour Act,
1971, if somebody 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, up-to three years, or with fine, or with

Under Prevention of Insults to National Honour Act of 1971 a
candidate is disqualified from contesting elections to parliament and state
legislature for 6 years if he is involved in:

(a) Offence of
insulting the National Flag.

(b) Offence of
insulting the Constitution of India.

(c) Offence of
preventing the singing of National Anthem.

Other Dimensions of Prevention
of Insults to National Honour Act (1971)

The Chhattisgarh government has stated that any
sketch or photo of Mahatma Gandhi depicted under the Swachh Bharat Mission
should not be used in public toilets, on trash cans, or at other filthy places
under the provisions of the Prevention of Insults to National Honour Act, 1971.
The government’s decision came after a division bench of the Chhattisgarh High
Court issued notices to the state and the Central government on a petition
seeking intervention against the improper use of Gandhian logos.

It was suggested that in honour of the armed
forces and to protect their dignity as they serve away from their families and
devoid of privileges such as leave on festivals and weekends to convenient work
timings etc, the armed forces of this country should be included in the
Prevention of Insults to National Honour Act, 1971, alongside the Indian
National Flag and National Anthem. 

Analysis of earlier Supreme Court Order

Though, article 51A say that it is the fundamental
duty of the citizen to respect the national anthem, but the earlier Supreme
Court order to mandatorily play the national anthem in cinema halls before each
screening do raise questions about the violation of the citizens fundamental
rights. This can be analysed in following way-

Right to
Freedom (Article 19)-
The Supreme Court has repeatedly
emphasised the value of free speech, noting that the freedom of speech and
expression lies at the foundation of all democratic organisations. People
go to cinema halls to relax and enjoy the movie, therefore asking them to stand
up during the national anthem violates the right to freedom. Court is
curtailing individual freedom by enforcing somebody to do something in
particular way.

Right to Personal Liberty (Article 21) is
getting affected.

Aggravates the moral policing: Enforcing Article 51A’s mandate to value our
rich heritage and composite culture is not appropriate as Radical groups
may resort to violent means to force citizens to follow this order. Thus, it
threatens the integrity of citizens including children, senior citizens and
differently abled people. American singer Luke Bryan
summarised the essence of the national anthem: “Any time I sing the anthem, it
is an honour and my heart beats out of my chest” For this kind of feelings, no
moral policing is necessary.

Judicial Overreach/ Judicial Activism- Judicial
Overreach is undesirable in the mature democracy.

Some other example of Judicial Activism

Liquor ban on national highways.

Direction to the Government of India to regulate

The SLP (Special Leave Petition) in case of Mahakaleshwar
temple in Ujjain regarding deterioration of the lingam in the temple due to use
of adulterated milk in worship.

Other lacunae in the Judgement

If anybody doesn’t stand up during National
Anthem, what are the consequences, is unclear.

Arguments in Favour of Imposing Nationalism

In MN Roy’s view, nationalism was representative
of the desires and ambitions of a group of people within a certain geographical
area, as opposed to people uniting based on class. Nationalism thus emphasised
the placing of one’s country’s interest over the interest of the rest of the

Before the beginning of Cricket & football
matches also, (which are the entertainment media) the national anthem is sung.
So why not before any film?

Some supporter of National Anthem Order think,
that there are some Fringe elements, who do not support the idea of India and Indianness,
this sort of order may help in their attitude change over longer period.

When people argument about increasing events of
vigilantism through such orders people supporting SC order argue that for anybody
who takes law in his hand (i.e. such vigilant) there is a special law to deal upon,
so that should not be an issue.

Being a multicultural country in India more than
700 languages and dialects are spoken. The national anthem works as a unifier.

Arguments against imposing Nationalism

How singing National Anthem in Cinema Hall can
judge anybody’s Patriotism. Why anybody should wear his patriotism on his

Ravindra Nath Tagore mentioned, “when the organisation
of politics and commerce, whose other name is the Nation, becomes all powerful
at the cost of the harmony of higher social life, then it is an evil day for
humanity.” He thus cautioned against an exclusionary and self-aggrandizing form
of nationalism.

Our national movement also did not in force
nationalism on somebody as our nationalism is not fascism.

Although Article 19 imposes restriction on the
freedom of speech, but the restriction had to be based on the law enacted by
parliament, in this case there is no such law. Right to speak also includes Right
not to speak so court cannot compel somebody to do something in a particular


Way Forward

For a mature democracy, there should not be any special emphasis, on
the occasion and manner in which citizens ought to display and demonstrate
their patriotism. You cannot enforce rationalism or nationalism on somebody. Singing
National Anthem should not be a test of Patriotism.

Doctrine of Separation of Powers should be followed, and
Judiciary should not intervene in the legislative matters.

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