One would have thought the issue had been clinched 30 years ago. That was when the Supreme Court (SC) had ruled in favour of three students in Kerala who stood with other schoolmates when they sang the national anthem one July morning in 1985, but refused to sing with them. Their father, V.J. Emmanuel, had instructed Bijoe, Binu and Bindu, students of a school in Ettumanoor in Kottayam, not to salute the flag or sing the anthem because their faith didn’t allow them to do so.
The school expelled the children. Emmanuel — who, along with his family, belonged to a Christian sect called the Jehovah’s Witnesses — moved court. He argued that singing the anthem was idolatry and an act of unfaithfulness to their God,
Jehovah.
“I received several letters threatening me. Because of the threats, we stayed away from our home for several days,” Emmanuel recalls. “But many lawyers including a retired Supreme Court judge congratulated me for what we did for the cause of individual freedom,” Emmanuel adds.
On August 11, 1986, in the Bijoe Emmanuel & others vs State of Kerala case, the Supreme Court declared that Article 19(a) of the Indian Constitution, which guarantees freedom of speech, and Article 25, which gives the right to freedom of conscience and to freely profess, practise and propagate religion were violated by the school when it expelled the students. The court ordered that the students be allowed to study in the school without any hindrance.
But the issue continues to crop up years after the SC judgment. Late 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. People who have not sung the anthem have been charged with sedition, and students have been expelled from schools and colleges. People have also filed cases on the legality of musical versions of the national anthem and on whether placing one’s hand on one’s heart while the anthem is being played amounts to an insult.
Last fortnight, a school in Allahabad in Uttar Pradesh was shut by authorities and its owner, Mohammad Zia-ul-Haq, arrested for not allowing the anthem from being sung at the school’s Independence Day celebrations. He had claimed that the words “Bharata Bhagya Vidhata” (Bharat, the bestower of good fortune) were against the teachings of Islam.
But what does the law on the national anthem say? Can one be arrested for not standing up or singing the national anthem?
Article 51A of the Constitution, which is on Fundamental Duties, states: “It shall be the duty of every citizen of India… to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”. But violations related to insulting the national anthem fall under Section 3 of the Prevention of Insults to National Honour Act, 1971. This law 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 a fine, or with both.”
The ministry of home affairs also has rules on the national anthem, which are supposed to be read as a part of the act. “Whenever the Anthem is sung or played, the audience shall stand to attention,” the rules state, and add that in all schools, “the day’s work may begin with community singing of the Anthem.” The rules, however, do not specify any punishment. The Constitution also takes precedence over the ministry rules, which have been passed by an executive order.
“There is no mandatory rule for singing the anthem,” stresses Saurav Datta, a former Supreme Court lawyer who has written extensively on issues concerning the law and nationalism. “But when the concept of individual liberty is caught up in the throes of nationalism, it can rouse some sentiments,” he adds.
Legal experts are waiting for the Allahabad school ruling, because they believe there is a difference between the Kerala and Allahabad cases. The former, points out lawyer Sanjay Hegde, was on individual freedom. “The question of whether an educational institution can say no to the national anthem because singing it is against religious beliefs hasn’t been settled by the Constitution,” Hegde says.
Some Muslim organisations believe that Haq may have erred in claiming that the national anthem was “un-Islamic”. Mohammad Salim Engineer, secretary-general of the Jamaat-e-Islami Hind, one of the largest Islamic organisations in the country, holds that there is “nothing un-Islamic” in singing the anthem. “But nobody can be forced to sing the anthem against their will. That is the law of the land. Only a dictatorship can impose a law making it compulsory to sing the anthem,” Engineer stresses.
The line between saluting and worshipping a nation has often troubled members of some religious groups. Most of the 45,000 people who belong to the Jehovah’s Witnesses sect do not sing the anthem or salute the flag, says Tobias Dias, spokesperson for Jehovah’s Witnesses of India, a Bangalore-based organisation. But there is no question of disrespect, he adds.
“Jehovah’s Witnesses respect the national emblems and the authorities like all law-abiding citizens of every country, including India. But we believe that bowing down to a flag or saluting it or singing the national anthem is a religious act that ascribes salvation not to God but to the State,” he says.
Lok Sabha member of Parliament Kirit Somaiya of the Bharatiya Janata Party, who raised the Allahabad case in Parliament, believes that the issue of an “insult” to the national anthem needs to be settled immediately. “There can be no compromise on those disrespecting the national flag and the national anthem. The home ministry has assured me that they will take strict action and also issue new guidelines to schools on the national anthem,” he says.
But forcing people to stand for the anthem can be an act of vigilantism, some argue. “In most cases, people believe that there is a law according to which you have to stand when the national anthem is being played or sung whereas it is just convention. And if such people get agitated towards those who may not stand or sing, they are clearly wrong,” Delhi-based lawyer Gyanant Singh says.
Perhaps, what the Supreme Court had said in the Bijoe Emmanuel case on fundamental rights will come in handy when the issue is settled. The court had observed, “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.”
