In the Kerala case a person was arrested on 20 August as he did not stand up when the national anthem was being played before a movie and he was also accused of “hooting” while it played. He was charged with sedition under Section 124A of the IPC, and was also charged under Section 66A of the IT Act, for allegedly posting derogatory comments about the national flag on a social networking site .
In this case Section 3 of the Prevention of Insults to National Honour Act was not applied which is the special laws for respecting the National Flag, National Anthem and the Constitution of India.
Section 3 of the Prevention of Insults to National Honour Act states:
Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.
Rather, in the above case Section 124A of the IPC was applied. Section 124A of Indian Penal Code 1860 states that:
“Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab¬lished by law in India shall be punished with im¬prisonment for life, to which fine may be added, or with impris¬onment which may extend to three years, to which fine may be added, or with fine.”
In my view, the act of hooting amounts not only insult of national anthem but also an attempt to bring into hatred or contempt towards the government of India. Therefore, he is tried under Section 124A of the Indian Penal Code because the activity is more than just insult to national anthem
The Home Ministry’s Rules , read along with the Prevention of Insults to National Honour Act, mandate that one must stand to attention whenever the anthem is played. However, no specific penalty is prescribed in these rules for not standing up.
The only precedent in the aspect of behaviour during the national anthem has been adjudicated only once in the past by the Supreme Court of India, in the celebrated case of Bijoe Emmanuel & Ors v. State of Kerala . In this case, the Supreme Court held that the freedom of religion protected the children belonging to the Jehovah’s Witnesses denomination of Christianity from penal action if they declined to join the national anthem when it was sung daily in their school. The judgement noted that though the children didn’t join in the singing of the national anthem, “they used to stand up in respectful silence” when it was sung. This protection not to sing was granted on the basis of freedom of religion, since members of the denomination are forbidden by their religious tenets from singing the national anthem of any country, or swearing allegiance to any entity other than Jehovah.
In the case of Jagdishwaranand v. Police Commissioner, Calcutta ,. The question in that case was whether the Ananda Margis had a fundamental right within the meaning of Art. 25 or Art 26 to perform Tandava dance in public streets and public places. The Court found that Anand Marga was a Hindu religious denomination and not a separate religion. The court examined the question whether the Tandava dance was a religious rite or practise essential to the tenets of the Ananda Marga and found that it was not. On that finding the court concluded that the Ananda Marga had no fundamental right to perform Tandava dance in public streets and public places.
No cases have examined the question of not singing—or, for that matter, not standing up—owing to political convictions. In my view, if a person does not stand up for the National Anthem and does not hoot or comment there is no offence of Sedition but he can be tried for insult of the National Anthem.
Bijoe Emmanuel & Ors v. State of Kerala 1986 SCR (3) 518
Jagdishwaranand v. Police Commissioner, Calcutta AIR 1984 SC 51
In the case before us the problem lies in the fact that the said person along with not standing up when the National Anthem was played he/she also started hooting when the National Anthem was being played. This at the very first instance attracts the provisions of special law along with general law.
Under the category of special law we witness that Section 2 and Section 3 of the Prevention of Insult to National Honour Act 1971 along with Section 124A of the Indian Penal Code have been involved extensively.
Section 2 of the Prevention of Insult to National Honour Act 1971 gives us that anyone who in public place or in any other place within public view burns, mutilates, defaces, disfigures, destroys, tramples upon or otherwise show disrespect by either by spoken words or in writing or by act to the Indian National Flag or the Constitution if India shall be punished. Explanation 4 of this clause provides that respect to India Flag includes a gross affront which means an action or remark that causes outrage or offence. Another relevant section in this regard is Section 3 which says, whosoever intentionally prevents the singing of the National Anthem or causes disturbance to any assembly engaged in such singing shall be punished.
Section 124A of IPC which deals with sedition was also applied in this case. It states that if anyone by spoken, written, by signs or by visible representation, or even otherwise brings hatred or contempt, or excites or attempt to excite disaffection towards the government established by law in India shall be punished. Dissatisfaction means disloyalty and enmity.
In this incident, the man did not stand up for the National Anthem and tried to cause disturbance when people in the cinema hall were standing, by hooting. This was considered as a violation of Section 3 of The Prevention of Insults to National Honour Act. It was seen that the person had no valid reason not to stand and sing and in addition to this he tried to cause more disturbances by hooting. While as per my analysis Section 124A of IPC would be inapplicable because it clearly states that it should be disrespect towards the government established by law in India and not the Flag, National Anthem or the Constitution. Also, the National Honour Act being a specific law with regard to National Flag has a higher standing that a general law (i) as the Indian Penal Code in this case.
The second part of question deals with a possible situation where though the person did not stand but he did not hoot as seen this incident. With regard to this situation Section 3 of the Prevention of National Honour Act 1971 will be violated if he did not have a valid reason for not standing. Reason such as his individual religious practice does not allow him to, as was allowed by the Supreme Court in the Bijoe Emmanuel case.(ii) While in the present facts, the person intentionally abstained from standing up but he also could not present any religious practice which could justify his action of not standing up. Therefore the Bijoe Emmanueal case is not applicable here.
In this regard my opinion with the second situation is that a legal offence like not standing up is an act of dissent. Our constitution provides vide us the freedom to speech of expression which should include the right to express our dissent with due respect. In this regard I think not standing up falls within the permissible threshold of dissent. Though there exists no legal provision or any case law on this matter and the Kerala High Court was also mute about this aspect, I think that just sitting when the National Anthem is being played cannot be considered as sedition. Such cases fall outside the purview of sedition under IPC and if so charged, should be considered under Prevention of National Honour Act 1971.
Such an act was rightly debated as a misuse of Section 124A. Misuse of such a section was also witnessed in the case when the cartoonist Aseem Trivedi was accused for sedition. After heavy criticisms, the High Court of Mumbai dropped the charge of sedition.
(i) I.T.C Limited v. Agricultural Product Market Appeal (civil) 6453 of 2001
(ii) Bijoe Emmanuel v. State of Kerala AIR 1987 SC 748