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National Anthem and the Law

  Jun 29, 2020

National Anthem and the Law

What does the Act say?

The Prevention of Insults to National Honour Act, 1971 prohibits insult to the country's national symbols, including the National Flag, the Constitution, the National Anthem and map of India. This act is applied in a case of insult, public or not, as well as intentional or otherwise. Whoever in any public place or in any other place within public view shows disrespect shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

What is the specific reference to Jana Gana Mana?

Section 3 of the Act says that whoever intentionally prevents the singing of the 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.

Repeat convict shall be punishable with imprisonment for a term, which shall not be less than one year.

What about the Fundamental Duties?

Part IVA (Article 51A) of the Constitution stipulates fundamental duties of Indian citizens which includes to abide by the constitution and respect its ideals and institutions, the National Flag and the National Anthem.

What is the origin of the National Anthem in India?

The National Anthem is the first stanza of the song ‘Jan Gan Man’, a poem written by the late poet Rabindra Nath Tagore. The National Anthem, for the first time, was sung on December 27, 1911 at the Indian National Congress, Calcutta session.

Can it be amended?

It is a part of the poem written by the late poet Rabindra Nath Tagore. It can not be amended. 

Elucidate the Bijoe Emmanuel v. State of Kerala case ruling.

In 1986, the Supreme Court gave its ruling in the Bijoe Emmanuel v. State of Kerala, popularly known as the National Anthem case.

The background to the ruling is as follows: A circular issued by the Education Department of the Kerala State Government required every day before classes begin, national anthem should be sung in an assembly and the whole school should join in collectively singing the National Anthem. Three children Belonging to a religious group called Jehovah's Witnesses stood but did not sing and so were expelled from school. They did not sing because, according to them, it was against the tenets of their religious faith to sing the National Anthem. The expulsion order was challenged but the High Court dismissed the writ petition.  When they approached the Supreme Court of India under special leave petition under Article 136 of the Constitution of India, apex court struck down the circular as unconstitutional holding that the punitive action taken against them was unmaintainable for the following reasons:

Violates of their fundamental right guaranteed under Article 19(1)(a) (free speech and expression) 

Right to silence is a part of right to free speech

Violates 25(1) (Right to pray)

Prevention of Insults to National Honour Act, 1971 does not mandate singing

Also, a fundamental right could not be restricted by a circular. It need parliamentary Act. 

Further, the restricted did not base itself on any of the 8 grounds mentioned in Art.19.2 that allowed reasonable restrictions. 

Nor was the restriction reasonable.

Where do the courts and the Government sand on this issue?

The Supreme Court in 2016 made it mandatory to play the national anthem in cinema halls before movie screenings to instil “a sense of committed patriotism and nationalism”.

“..all present in the hall are obliged to stand up to show respect to the national anthem,” it ordered.

However, in January 2018 the court withdrew this order.

It is not clear as to what constitutes ‘respect’.

An order issued in October 2018 by the Ministry of Home Affairs (MHA) stated that “whenever the anthem is played, the audience shall stand to attention”.

What is the status of National Song?

Constitution does not mention it. 51A(a) of the Constitution (fundamental duties) does not refer to 'National Song'. It only refers to National Flag and National Anthem.