Srinagar: In a significant judgment, the Jammu & Kashmir high court has held that while not standing up for the national anthem could be considered ‘disrespect’ to the anthem, it does not constitute an offence under the Prevention of Insults to National Honour Act, 1971.
The landmark ruling is likely to have implications for several cases registered against people in different states and Union Territories accused of not standing up for the national anthem or standing up but not singing it.
The court also quashed an FIR registered against a lecturer in Jammu province who was accused of not standing up for the national anthem at a college function in 2018 to celebrate the first anniversary of the Indian Army’s ‘surgical strike’ on militant camps in Pakistan Occupied Kashmir.
‘Does not constitute an offence’
A single bench of Justice Sanjeev Kumar held that not standing for the national anthem does not constitute an offence under the Prevention of Insults to National Honour Act. Citing section 3 of the Act, the judge said the law only penalises the conduct of a person who either prevents the singing of the national anthem or causes any disturbance to any assembly engaged in such singing.
“It is, thus, concluded that though certain conduct of individuals like not standing up while the national anthem is being played or standing quiet in the assembly engaged in the singing of national anthem may amount to showing disrespect to the national anthem but would not, per se, constitute an offence under Section 3 of the Act,” the judge said.
The UT’s top court also said that respect to the national anthem is one of the fundamental duties enumerated under the constitution of India but these duties are not enforceable by law nor is the breach of such duties an offence under any penal law of the state.
In its order, the court also referred to a private members’ Bill brought by BJP MP Parvesh Verma in 2019 to emphasise the point that Section 3 of the Act, as it stands currently, does not make “disrespect” to the Indian national anthem an offence unless it has the effect of preventing the signing of the national anthem or disturbing the assembly engaged in the act of signing.
“The conduct must amount to either preventing the signing of the National Anthem or causing disturbance in the assembly engaged in such singing so as to bring it within the purview of Section 3 of the Act,” the judge said.
The Bill brought by the MP sought an amendment that “disrespect” in section 3 of the Act shall include any person refusing to stand for or recite the national anthem, except when such person is suffering from any physical disability.
The court quashed the FIR registered against Tawseef Ahmad Bhat, who was booked under section 3 of the Act in 2018, saying, “Allowing the investigating machinery to proceed in the matter would be an abuse of process of law.”
The court observed that from the perusal of the FIR, which is based on the written complaint of the college’s students, it clearly transpires that Bhat had not acted in a manner which prevented anybody from singing the national anthem or caused any disturbance to the assembly.
“Failure of the petitioner to participate in the assembly engaged in the singing of Indian National Anthem, intentionally or otherwise, and roaming about in the school premises where the assembly was engaged in singing Indian National Anthem, in my opinion, would not amount to either preventing the singing of Indian National Anthem or causing any disturbance to the assembly engaged in such singing,” Justice Kumar said.
He said Bhat’s conduct, if intentional, may amount to showing disrespect to the national anthem and a breach of fundamental duties enjoined on Indian citizens by Article 51A of the constitution. “The petitioner by losing his contractual job has already paid the price,” the court said.
Scores booked in past years
Over the past few years, cases have been filed against scores of people in different states and UTs for not standing up when the national anthem was being played.
A number of people were arrested in Kerala and Chennai immediately after the Supreme Court in November 2016 made it mandatory for cinema halls to play the national anthem before screening the films.
In 2017, the apex court conceded that its order to play the national anthem before every movie in cinema halls and for the audience to stand up and show their respect had been misused to call people “anti-national”.
In a reversal of its 2016 verdict, the Supreme Court in January 2018 held that playing the national anthem in cinema halls before screening of films is no longer mandatory and left it to a government panel to frame guidelines in this sensitive matter
A number of Kashmiri students have also been booked under the Prevention of Insult to Honours Act within and outside J&K.
In February 2017, an FIR was registered against two youngsters from the Kashmir Valley, one from Anantnag and one from Handwara, for “refusing” to stand up for the national anthem before the start of a film at a cinema hall in Narwal belt of Jammu.
In August that year, three engineering students from Kashmir were booked for allegedly disrespecting the national anthem by not standing while it was being played in a cinema hall in Hyderabad.
In November 2017, two students of Baba Ghulam Shah Badshah University (BGSBU) in Rajouri district of Jammu province were booked for not standing up when the national anthem was being sung in the varsity during a function which was attended by then J&K governor N.N. Vohra.
In other parts of the country, some people were beaten up or thrown out of cinema halls for not standing up when the national anthem was being played In 2016, a disabled writer was assaulted at a multiplex in Panaji, Goa. In December 2017, three people were beaten up in a theatre in Chennai, while in 2014, a 31-year-old person was attacked in Mumbai’s PVR Phoenix movie theatre when his South African girlfriend didn’t stand up for the national anthem.