Listening to our national anthem will definitely instill the feeling of nationalism and patriotism in every one of us. But here the issue is different. The ongoing debates and discussions across the country revolve around one topic: whether not standing when the national anthem is played in cinema halls is an offense which could entail punishment or penalty!
The national anthem once again became a hot topic of discussion after the Supreme Court ordered 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” as a part of their “sacred obligation”. The central government also instructed the Chief Secretaries of all the states and Union Territories to comply with the Supreme Court's order.
The Supreme Court Bench stated that the objective of the judgment was to instill a sense of committed patriotism and nationalism in citizens.
In Kerala, the rule was first implemented at the International Film Festival of Kerala (IFFK) held in Thiruvananthapuram recently. Reports showed that a group of youngsters, who refused to stand up while the national anthem was in progress before a screening, were detained by the Kerala police and charged for contempt of the Supreme Court directive.
Article 51-A (a) of the Constitution of India enjoins a duty on every citizen of India “to abide by the Constitution and respect its ideals and institutions, the National flag and the National Anthem”. But we all know that this constitutional provision is not enforceable and has to act as a guiding principle.
However, there is the Prevention of Insults to National Honor Act, 1971, which implies that those who “intentionally prevent” or “cause disturbance” to the singing of the National Anthem are liable to be prosecuted under the Act. The offenders could be punished with imprisonment for a term which may extend to three years, or with fine, or with both.
It is clear that if a person does not stand in attention whenever the anthem is sung or played, he/she would not be contravening any of the provisions. If that is the case, how can such an act be termed as an offense?
According to the Constitution of India, the sovereign authority to make and unmake all laws, including the constitutional law of the country, lies with Parliament and legislature assemblies. It includes the punishment of people who violate these laws. The judicial system’s role is to interpret the legal norms before pronouncing appropriate sentence or punishment.
So it goes without saying that nobody has the right to punish a person for an ‘offence’ that is not punishable under law of the land.
Moreover, Article 20 clearly states that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence. So, how could the police arrest and put in jail those who fail to stand for the national anthem?
According to media reports, the IFFK delegates were charged for contempt of the Supreme Court order. Nevertheless, the police action simply defies commonsense and logic.
As far as the proceedings for contempt are concerned, there are specific rules that need to be followed.
When an action constitutes contempt of a Supreme Court directive, the apex court can either initiate suo moto proceedings against the offender or law enforcement agencies can take action against the person after obtaining the consent of the Attorney General.
In fact, Section 9 in the Contempt of Courts Act, 1971, makes it clear that “nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable a part from this Act."
Hence, the recent arrests made in connection with the national anthem row are illegal and in violation of the fundamental rights enshrined in the Constitution.
(The author is a former Secretary-General of Lok Sabha)