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This article has been written by Ashutosh Singh, from Amity Law School, Kolkata. This article is a discussion about what is expected with respect to the singing of our National Anthem from the citizens of our country.

Introduction

The case discussed in this article is of Bijoe Emmanuel vs. State of Kerala.

The case revolved around the National Anthem of India. Before we go on to the discussion about this case, let us understand a few things concerning our National Anthem. A National Anthem reflects the people of the country, their struggles, their story through time, their traditions and about its people. It is generally a song which is patriotic, a musical composition which is officially recognised by the government or the constitution of the country. In this case, students of a school in Kerala were expelled for not singing the National Anthem. 

They followed the religious faith of Jehovah’s witnesses and objected to singing the “Jana Gana Mana” because it was allegedly against their religious beliefs. The case went to the Kerala High Court when the father of the children filed a writ petition which was dismissed as the high court felt that the National Anthem did not have any words that could offend anybody’s religious sentiments. The father of the children then filed a special leave petition in the Supreme Court and the apex court found that the children’s right to freedom of expression was violated on expulsion from the school, as even though the children did not participate in singing the National Anthem, they did stand in respect when it was being sung by others.

Importance of the National Anthem

We sing the National Anthem for many reasons. It represents our country and who and what we stand for. It reflects the beliefs, culture, sufferings, and triumphs which its citizens have faced together. It’s a song that binds all the people of a country together and gives them a sense of identity. Such is the power that when you hear the National Anthem being played somewhere, you immediately feel at home. The National Anthem evokes a sense of pride and strong emotions of patriotism for the county. One always finds that the National Anthem of different sports persons of different countries are played because it motivates them to give their best for their country. When the National Anthem is played, people stand together, maybe sing together loudly or silently in unison, despite their differences for the glory and respect of the country. That is why it is encouraged to sing the National Anthem in schools, colleges, gatherings, national functions, and events to inculcate respect, pride, nationalism, and a sense of unity and identity. 

Law on the National Anthem in India

In India, the Prevention of Insults to National Honour Act, 1971 is applicable in case of the desecration or insult of India’s National Flag and other national symbols, the National Anthem, the map of India including contempt to the Indian Constitution. Section 3 of the Act has provision for the punishment of imprisonment for a term, which can extend up to three years, or with fine, or with both, when anyone intentionally interrupts, prevents the singing of the National Anthem or causes disturbances to any assembly engaged in its singing.

Apart from the Prevention of Insults to National Honour Act, 1971, the Ministry of Home Affairs has its own set of rules on the National Anthem, which are supposed to be read as a part of the Act. The Ministry rules have been passed by executive order. The rule states that the schools should begin their day with community singing of the National Anthem. It also states that the audience has to stand in an attention position whenever the National Anthem is sung. The rules of the Ministry of Home Affairs do not have any punishment prescribed in case of their violation. Anyway, in all cases the Constitution takes precedence over the Ministry rules.

Interestingly in another case in Kerala (Salman vs State of Kerala), the police had charged a youth named Salman for sedition under Section 124A of IPC and 6 other people because they did not stand when the National Anthem was being played in a Thiruvananthapuram Cinema hall. Subsequently in September 2014, the Kerala High Court observed that Salman had not committed any offence amounting to a threat to the security of the nation by his actions and he was granted bail. 

Singing the National Anthem, however, is not mandatory. There has been no judgement or directive by the Supreme court or any legal or administrative direction which makes it mandatory to stand during the National Anthem. So, it boils down to one’s own patriotic feeling and personal respect for the country. The law also is silent on the matter of whether a person should be sitting or standing while the National Anthem is being played.

This information equips a better understanding of the case at hand.

Facts of the case

The facts of the case are as follows:

  1. The case pertains to 3 students – Bijou, Binu Mol and Bindu Emmanuel who studied in a school in Kerala.mThey attended the school everyday and even participated in the school assembly.
  2. However, when the National Anthem was sung,  they didn’t sing the National Anthem  along with the other students but stood in attention. 
  3. Their two elder sisters also studied in the same school and followed the same practice and nobody ever objected to it.
  4. One day in July 1985, a member of the legislative assembly attended the assembly and noticed that the 3 children were not singing the National Anthem and he thought that this behaviour of theirs was unpatriotic.
  5. He raised this question in the Assembly and a commission was set up to investigate the matter. The commission reported that the children were well behaved and law-abiding and did not ever show any disrespect to the National Anthem.
  6. However, the Head Mistress expelled the students from the school under the instructions of the Deputy Inspector of Schools.
  7. The father of the children requested the headmistress to allow the children to attend their classes in school till they received a government order/decision in the matter. The Headmistress expressed her inability to do so. 
  8. The objection of the Emmanuel children was not the language or the sentiments of the National Anthem. They did not sing the National Anthem, but they always stood in when the National Anthem was sung to show their respect to it. They did not sing only because of their belief and conviction that their religion did not permit them to join any rituals except it be in their prayers to Jehovah, their God.
  9. Since the appellants were prevented from attending the school, they sought a restraining order passed by the authorities. However, their writ petition was first rejected by a single learned judge and then the division bench also rejected the prayer of the children.
  10. After this, the case was appealed by the father, in the Supreme Court through a special leave petition in pursuant of Article 136 of the Constitution.

Issues raised

  1. If the expulsion of the 3 students from a school in Kerala is justified under Kerala Education Act (Section 36), Kerala Education Rules(Rule 6 and 9) and Section 3 of Prevention of Insults to National Honour Act 1971?
  2. Whether the expulsion of the children from the school are consistent with the rights guaranteed under Article 19(1) and Article 25 of the Indian Constitution?

An overview of the Kerala High Court judgement 

Prior to appealing to the Supreme Court, the 3 children filed a writ petition in the High Court seeking an order to restrain the authorities from preventing them from attending school. The writ petition was first rejected by a single learned judge and then the division bench also rejected the prayer of the children.

The decision of the High Court of Kerala was based on the Kerala Education Act. However, the Act does not have any such provision, but Section 36 enables the Kerala Government to make rules to implement the provisions of the Act to provide a good standard of education and courses in the Kerala schools. According to Rule 9 of Chapter 8 of the Act, good moral education is essential part of the curriculum without wounding the religious and the social susceptibilities of the people in general. One of the moral characteristics stressed upon is love for one’s country. Students found guilty of intentional insubordination, mischief, fraud, mal-practice in examinations or conduct which can negatively influence other students, can be suspended or dismissed from the school under Rule 6 of Chapter 9.

The Kerala education authorities follow 2 circulars (of September 1961 and February 1970) issued by the Director of Public Instructions, Kerala. They are:

  1. Code of Conduct for teachers and pupils in schools of Kerala which stresses on the importance of moral and spiritual values like patriotism, no religious or party interference, love for one’s country, national integration – the basis of which should be laid down in school.
  2. It is compulsory for all schools to have morning assembly every day. All teachers and pupils have to be gathered for the assembly. After singing the prayer, all the students have to sing the National Anthem and take the National Pledge before marching back to their respective classes.

If the two circulars are to be interpreted in such a way that every student has to join in singing the National Anthem despite his/her religious constraint and objection, then such compulsion would violate the rights guaranteed by Article 19(1)(a) and Article 25(1) of the Indian Constitution to the students.

Appeal to the Supreme Court

An appeal was made to the Supreme Court through a special leave petition after the High Court of Kerala rejected their writ petition. The arguments of both sides were reviewed. 

The petitioners argued that they did not sing the Anthem but they stood up on such occasions to show their respect to the National Anthem. In their defence the children said that their religion did not permit them to join in any such rituals except it be in their prayers to Jehovah, their God. They did not hold their beliefs and conduct out of stubbornness. They highlighted that singing the anthem was idolatry and this was considered as an act of unfaithfulness towards their God. On the other hand, the respondents justified their actions according to the Kerala Education Act and Rules.

The Supreme Court in this case gave the judgement that, Article 19(a), which guarantees freedom of speech, and Article 25, which gives the right to freedom of conscience to freely profess, practice and propagate religion are fundamental rights which are guaranteed to every citizen. Over here the reason to compel each and every student to join in the singing of the National Anthem despite his/her genuine concern that it would violate their religious belief clearly breaches the right guaranteed by Article 19(1)(a) and Article 25(1) of the Constitution of India.

So, in this case, the Supreme Court held that the three students were not guilty of disrespect to the National Anthem just because they refused to sing it. Moreover, they did stand in respect whenever the National Anthem was being sung. 

The reasoning behind this judgement was that there was no legal provision that obligates anyone to sing the National Anthem, and it is not disrespectful to the Anthem. The court ordered that the students be permitted to study in the school without any hindrance. Further, the court had observed that our traditions taught us tolerance, our philosophy preaches tolerance, our Constitution practices tolerance and hence we should not dilute it.

Conclusion

The Supreme Court has given its ruling and cleared its stand on the issue of National Anthem but it continues to surface now and then. Just last year in Mumbai, a family was forced to leave a cinema hall because they didn’t stand up for the National Anthem when it was being played on the screen. A few years back a school in Allahabad in Uttar Pradesh was shut by authorities and its owner, Mohammad Zia-il-haq was arrested for not allowing the National Anthem to be sung at the school’s Independence Day celebrations. He claimed that the words, “bharata bhagya vidhata” were against the teachings of Islam.

People have been charged with sedition in the past for not singing the National Anthem. The legality of musical versions of the National Anthem, its appearance in movies and whether placing one’s hand on one’s heart while the Anthem is being played amounts to an insult are some of the other questions that keep coming up from time to time. People in a country should definitely respect their national Anthem,  but the method by which they choose to do so should not be forced on them as long as it is one of the accepted methods.

References


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