Although a law exists that criminalises insulting the national flag, national anthem and the constitution, it does not make it mandatory for a citizen to stand up when the anthem is played. The apex court has thus created a new offence without any legislation to back it.
On November 30, a division bench of the Supreme Court consisting Justice Dipak Misra and Justice Amitava Roy ordered that cinema halls across India must play the national anthem before the screening of a film and that all present should stand to show their respect. In doing so, the apex court has shown a complete disregard for the rule of law and the constitutional norms that form the bedrock of a democratic polity.
Things took an ugly turn at the International Film Festival of Kerala (IFFK) when six people – including journalists – were arrested for allegedly refusing to stand when the national anthem was played before the screening of the Egyptian film Clash. The director general of police, Loknath Behra, reportedly received a complaint from the members of Bharatiya Yuva Morcha – the youth wing of the BJP and based on the complaint, he directed the assistant commissioner of police to inquire into the matter. Reports also suggest that police personnel were among the audience.
The organisers of the film festival had earlier moved the Supreme Court to seek an exemption from its order owing to the large number of daily shows scheduled at the festival. Denying the relief, the Supreme Court observed that, “…if there are 40 movies running in different shows, you will have to, well, stand 40 times.”
This order stems from a flawed understanding of Article 51A(a) of the constitution which makes it a duty of every citizen of India to abide by the constitution and respect its ideals and institutions, the national flag and the national anthem. Article 51A, which enlists fundamental duties, are, in terms of political philosophy and constitutional law, duties addressed to the citizen, without any legal sanction for their violation.
D.D. Basu, in his seminal commentary on the constitution of India, opines that it is expected that a citizen should be his own monitor while exercising and enforcing his fundamental rights remembering that he owes the duties specified in Article 51A to the state and that if he does not care for the duties, he should not deserve the rights. A right is thus the antithesis of a duty. A fundamental duty is thus not a source of legislative power for the judiciary.
The Prevention of Insults to National Honour Act, 1971 criminalises an insult to the national flag, national anthem and the constitution. Section 3 of this Act says that whoever intentionally prevents the singing of the national anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term which may extend up to three years or with fine, or both. While Section 2 discusses in detail the acts that insult the national flag and the constitution of India, Section 3 focusses only on one act of insult-prevention of singing of national anthem. None of the sections of this Act makes it mandatory for a citizen to stand up when the national anthem is played. Similarly, the Indian Penal Code, 1860 does not criminalise any act that insults the national anthem.
The police in Thiruvananthapuram who arrested six people at the IFFK have charged them under Section 188 of the IPC which deals with the disobedience of an order duly promulgated by a public servant. Under this section, a ‘public servant’ includes judges as well. Hence, in the absence of any other provision of law which criminalises an act that insults the national anthem by not standing when it is sung, the police had no other option but to resort to Section 188. Legal commentaries on the IPC say that to constitute an offence under Section 188, it is necessary to show:
- A lawful order promulgated by a public servant empowered to promulgate it;
- Knowledge of the order which may be general or special;
- Disobedience of such order; and
- The result that is likely to follow from such disobedience.
It has been held by multiple high courts that a mere disobedience of an order does not constitute an offence in itself. It must be shown that the disobedience has or tends to have a certain consequence, namely annoyance, obstruction, etc. Further, it is also settled law that the annoyance has to be proved as a fact; the mere mental annoyance of the concerned authorities is not enough. The reliance on Section 188 by the police, thus, lacks legal wisdom.
In this case, the Supreme Court has, in effect, created a new offence without any legislation backing it. In a democratic system of governance with a written constitution, it is imperative to have a solid rule of law where rights and duties of citizens are defined and offences and punishments are charted out explicitly. In the law of taxation, it is settled law that a charging provision will fail in the absence of corresponding machinery provisions. If this is true for a law imposing tax liability, the same principle should be applicable with more vigour to a criminal offence where issues of right to life and freedom of speech and expression are involved.
A.V. Dicey, a renowned British constitutional law scholar who is widely given credit for popularising the phrase “rule of law”, writes in his book Introduction to the Study of the Law of the Constitution, that behind the elaborate organisation of governmental machinery, there rests a fundamental assumption of faith in a democratic form of government. This assumption, according to him, gives rise to a belief, sentiment, principle or prejudice, which is firmly rooted in public opinion, that there must be no interference by governments and parliaments with freedom of speech and freedom of political association to ensure free elections. In India, since there are no absolute rights under Article 19, the government can make a law giving effect to the fundamental duty provided under Article 51A(a). The constitution of India draws a distinct role for the judiciary – to interpret law through impartial judges. No man is punishable or can be made to suffer except for a distinct breach of law. When a law is passed by the parliament, there is always a presumption of constitutional validity attached to it. This is because, in a democracy, the parliament is considered to be the voice of the people. Judiciary, on the other hand, should check the excesses of the parliament as mandated by the constitution. The moment the judiciary starts legislating, it becomes a non-sovereign law-making body, which violates the original intention of the drafters of the constitution.
Rahul Unnikrishnan is an advocate at the Madras high court and acknowledges the assistance of Sugandha Khaitan and Sudhanshu Prakash, students of law.