National Anthem and Prevention of Insults to National Honour Act 1971

In December 2016, the Supreme Court has ordered cinema halls to mandatorily play the national anthem before every screening and all those present in cinema halls have to “stand up to show respect.” This judgement says that such practice would instil a feeling of committed patriotism and nationalism; and should be seen as an opportunity for the public to express their “love for the motherland.”

In this write-up, we are looking into the provisions of the Prevention of Insults to National Honour Act to understand the legal aspects of this issue.

Prevention of Insults to National Honour Act, 1971

This act is applicable in whole of India (including Jammu & Kashmir) and it prohibits the desecration of or insult to the National Flag, Constitution, National Anthem, India’s Map etc.

Provisions Regarding National Flag and Constitution

This act makes provision that whoever burns, mutilates, destroys, disfigures or otherwise shows disrespect to India’s National Flag or Constitution shall be punished with an imprisonment (max-3 years) or a fine or both. The definition of Indian Flag included any picture, drawing, photograph or any other visible representation.

How the above provisions are related to Flag Code of India 2002?

Kindly note that display of National Flag is governed by the provisions of two acts viz. Emblems and Names (Prevention of Improper Use) Act, 1950 and Prevention of Insults to National Honour Act, 1971. Further, the government also issues non-statutory instructions from time to time. The Flag Code of India brings these laws, conventions and other instructions together and serves as a single reference point about how to properly hoist flag of India with due honour. The Flag Code of India itself is not an act of parliament.

How provisions of IPC are related to disrespect to National Anthem?

Disrespect to national insignia has been linked to Section 124(A) of IPC, which refers to sedition. This section was slapped on few people in Kerala who failed to stand while National Anthem was being played in a theatre. Similarly, a youth was arrested under Section 66-A of the IT Act in 2014 {this section is now null and void} for posting a picture of National Flag with a derogatory comment on it on Facebook.

Provisions Regarding National Anthem

The section 3 of the Prevention of Insults to National Honour Act says that whoever intentionally prevents the singing of National Anthem or causes any disturbance in such singing shall be punished with imprisonment (max 3 years) or a fine or both.

Is it mandatory to stand during National Anthem?

The act itself is silent on this matter and limits itself to punish those who create ruckus while others sing National Anthem. However, as mentioned above, the government brings non-statutory directions from time to time. One such direction came in January 2015 in the form of General Provisions of the orders that says the following:

“Whenever the National 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.”

The above provision makes it mandatory to stand when National Anthem is played with an exception that if National Anthem is plated as a part of a Film, audience is not required to stand.

Judicial Scrutiny of the matter

The matter of mandatorily standing during national anthem had come to Supreme Court scrutinise also in 1987 in the Bijoe Emmanuel vs State Of Kerala  case. In this case, a school had expelled three children of a community called Jehovah’s Witnesses because these children did not sing National Anthem. The reason was that the members of this community worship only Jehovah-the Creator and none other.  Singing National Anthem (not words or thoughts embodied in the National Anthem) was against the tenets of their religious faith.

The Supreme Court in its judgement ordered the school to take back these children. The court maintained in this case that:

• There is no legal provision that obliged anyone to sing the National Anthem
• It is not disrespectful to the Anthem if a person stands respectfully but does not join others in singing it.

But what if a person chooses to not to stand during National Anthem? This issue was not taken by Supreme Court.

Again, this matter had recently come under scrutiny of the Madras High Court in September 2015 when a writ petition was filed in the court to seek direction to owners of the cinema halls {please note the Mandamus nature of writ here} in Tamil Nadu to stop playing the National Anthem before screening of the films. The logic was that only few people stand and most choose to not to stand which actually disrespects the anthem. However, the High Court quashed the writ petition because in its view, the allegation was vague.

Current Position

Currently, we need to follow the 2015 General Provision which says that” Whenever the National Anthem is sung or played, the audience shall stand to attention.” Hitherto, there was no judgement of any court which allowed people to choose to not to stand or makes it mandatory to stand during national anthem. The recent Supreme Court Judgement has removed all doubts.