Context: An executive magistrate in Srinagar has sent 11 men to jail after they were detained for allegedly not rising for the National Anthem at an event on June 25 where J&K Lt Governor Manoj Sinha was present.
Bound Down In legal terms, to be “bound down” means to be required to appear before the investigating officer or the court on a given date. The expression is usually used in court orders to indicate that an accused is “bound” by surety or personal guarantee to appear before authorities.
Provision of CrPC used for arrest
Section 107 Of CrPC
“It authorises a Magistrate, in case of emergency when breach of peace is imminent, to order the accused person to agree to a bond which asks him to maintain peace for the prescribed period of time, not exceeding one year, as the Judge thinks would fit.”
Section 151 of CrPC
“A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
Such a detention period should not exceed twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force.”
Standing up for national anthem
- Art 19(1)(a) provides for freedom of speech and expression
- Art 19(2) put restriction on the freedom provided under article 19(1)(a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence
- Art 25 provides for Freedom of conscience and free profession, practice and propagation of religion subject to public order, morality and health and to the other provisions of Part 3.
- In Part 4A, under Art 51A(a) every citizen has a duty to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
The Prevention of Insults to National Honour Act, 1971
Section 3 of The Prevention of Insults to National Honour Act, 1971 prescribes jail up to three years and/ or a fine for “intentionally preventing the singing of the National Anthem or causing disturbance to any assembly engaged in such singing”.
- Whether mere standing and not singing the national anthem under a religious belief can be protected under Article 19 (1) (a) and 25 (1) of the Constitution of India.
- Art 51A(a) of the Constitution makes it every citizen’s duty to “abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem”
The Issue arises because these provisions neither expressly spell out the proper way to show respect, nor do they talk about sitting or standing while the national anthem plays.
Supreme Court Cases
Bijoe Emmanual & Others v. State of Kerala & Ors, 1986
In this case, Hon’ble Supreme court (SC) granted protection to three children of Jehovas witness Sect, who didn’t join in singing of national anthem but stand respectfully at their school. The court held that forcing the children to sing national anthem is a violation of their fundamental right to religion.
Shyam Narayan Chouksey v. Union of India
Supreme Court said that
- Article 25 (“Freedom of conscience and free profession, practice and propagation of religion was incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.
- SC passed an interim order that “All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.”
- The court had also ordered that “entry and exit doors shall remain closed” when the Anthem is played, and that “when the National Anthem shall be played…it shall be with the National Flag on the screen”
Later, in 2018, the order passed was modified to the extent that playing of the National Anthem prior to the screening of feature films in cinema halls is not mandatory, but optional or directory.
Instruction for Correct use of National Anthem by Ministry of Home Affairs (MOHA)
Instructions have been issued by MOHA from time to time about the correct versions of the Anthem, the occasions on which these are to be played or sung, and about the need for paying respect to the anthem by observance of proper decorum on such occasions.
- In an order issued by, the Ministry of Home Affairs (MHA) had stated that “whenever the anthem is 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 ministry added.
Constitutional Patriotism is a German Jurisprudence concept which indicated complete devotion to constitutional principles as a way of encouraging social cohesion and dwells on building a common identity for all its citizens over their individual culture, religion tradition etc., thereby making the constitutional principles as binding factors and nothing else.
- The idea was introduced by the German philosopher Karles Jaspers after World War II to inculcate the feelings of unity among the German people.
- It was believed to be a kind of solidarity that is different from the context of nationalism and the ideas of a single community.
However, in this context, the Supreme Court has used this concept to play the national anthem as a means to instill patriotism and nationalism which is symbolic of the nation and not of the constitution.
Difference between Nationalism, Cosmopolitanism and Constitutional Patriotism
- In general, the concept of constitutional patriotism designates the idea that political attachment ought to center on the norms, the values, and, more indirectly, the procedures of a liberal democratic constitution.
- Thus, political allegiance is owed, primarily, neither to a national culture, as proponents of liberal nationalism have claimed, nor to “the worldwide community of human beings,” as, for instance, Martha Nussbaum’s conception of cosmopolitanism has it.
- Constitutional patriotism promises a form of solidarity distinct from both nationalism and cosmopolitanism.