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KEY TAKEAWAYS

  • Article 51A(a) of the Constitution of India states that it shall be the fundamental duty of every Indian citizen to "abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem".
  • Supreme Court: the guidelines as laid down under the Flag Code deserve to be followed to the extent it provides for preservation of dignity and respect for the national flag
  • Madras High Court: A Country’s National Flag is a symbolic manifestation intended as an inclusive, representative and integrated comity. The National Flag, therefore, conjures a rush of pride in the whole being of its citizens

INTRODUCTION

The National Anthem of a country represents the values and beliefs of a country. It is also a representation of the culture and traditions of a nation. It is respected by all the citizen's of the country and invokes pride in the citizens.

LAWS REGARDING NATIONAL ANTHEM AND NATIONAL FLAG

Respecting the National Anthem and National Flag is a fundamental duty of all the Indian citizens. Article 51A(a) of the Constitution of India states that it shall be the fundamental duty of every Indian citizen to "abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem".

Furthermore, the the Prevention of Insults to National Honour Act, 1971 provides that no one shall insult the National Flag or the National Anthem. This Act prevents the desecration or insult of the national symbols of the country. Failure to abide by the provisions of this Act may lead to imprisonment up to 3 years or fine or both. Where a person is found guilty of a second offense under this Act, such a person shall be punished with a minimum of one year of imprisonment for the second and every subsequent offense.

The Flag Code of India, 2002 regulate the use of Flag by the general public. While this Code permits free use of the National Flag by the General Public, it makes certain provisions to ensure that the Flag is used in a respectful and dignified manner.

Moreover, the Emblems and Names (Prevention of Improper Use) Act, 1950 prevents the use of the National Flag for commercial purposes.

LANDMARK CASES REGARDING NATIONAL FLAG AND NATIONAL ANTHEM

There has been considerable debate in legal circles regarding whether it is a statutory mandate to stand up during the National Anthem or not. There have been several judgments regarding the issue.

Bijoe Emmanuel vs. State of Kerala

This case related to three students who were expelled from a Kerala school for not singing the National Anthem during the school assembly. The students however stood in attention during the anthem.

A member of the Legislative Assembly once visited the school assembly and noticed that the students were not singing the National Anthem. When the member brought up the issue in the Legislative Assembly, a commission was set up to investigate the matter and the commission found the students to be law abiding and concluded that they had never been disrespectful of the National Anthem. However, the students were expelled by the school authorities. The children believed that their religion prevented them from being part of any ritual other than the prayers to their God.

The father of the children appealed before the Kerala High Court against the expulsion of the children. The Kerala High Court rejected the appeal. The Court relied on a circular issued by the Director of Public Instructions, Kerala which provides that all schools must have morning Assembly and students must sing National Anthem in the morning assembly.

Subsequently, the father of the children appealed before the Supreme Court of India.

The Apex Court noted that Article 19(1)(a) of the Indian Constitution guarantees the fundamental right to freedom of speech and expression and Article 25 of the Indian Constitution guarantees the "Freedom of conscience and free profession, practice and propagation of religion". However, Section 19(2) provides certain restrictions on the fundamental right to speech and expression. The Court observed that the present case did not fall into any of the reasonable restrictions.

Furthermore, the Court noted that no statute in India mandates the singing of the National Anthem. The fundamental duty is to respect the National Anthem which the petitioners did by standing in attention. Lastly, the Court held that the circulars cited by the school authorities were issued by the Director of Public Institutions and such circulars did not have any statutory force. Thus, the Court held that the students had not disrespected the National Anthem and ordered the authorities to permit the students to study at the school. We see that the Supreme Court had highlighted the Constitutional spirit of tolerance in this case.

Shyam Narayan Chouksey v. Union of India

The petitioner in this case had approached the Court to issue directions or orders specifying what one must do and from what one must refrain from, in order to respect the National Anthem. The petitioner pleaded the Court to prevent the use of National Anthem for any commercial or financial exploitation.

It was while hearing this case, that the Supreme Court had made an interim order making it mandatory for every cinema hall and movie theatre to play the National Anthem before any movie. Furthermore, the Court had held that every person must show respect to the National Anthem by standing still during the period the National Anthem was played. The Court stated that "When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen."

Furthermore, the Apex Court clarified that "if a physically challenged person or physically handicapped person goes to the Cinema hall to watch a film, he need not stand up, if he is incapable to stand, but must show such conduct which is commensurate with respect for the National Anthem."

However, further the Court stated that it is for the Central Government to decide whether the playing of the National Anthem in cinema halls must be made mandatory or not. The Court held that "the playing of the National Anthem in the cinema halls on the screen may not be made mandatory and the word ―shall may be substituted with ―may until a final decision is taken by the Committee and, thereafter, by the Central Government."

Union of India vs. Naveen Jindal and Another

In this landmark judgment, the Supreme Court of India considered the question as to whether "the right to fly the National Flag by Indian citizen is a fundamental right within the meaning of Article 19(1)(a) of the Constitution of India."

The Apex Court observed that the National Flag, National Anthem and National Symbols reflect the secular unity of the nation. The Court stated that the National Flag "was not to be the flag of the rich or wealthy, but it is to be the Flag of the depressed, oppressed and submerged classes all over the country" and the "flag was to be the flag of the Nation, not the flag of any particular community, but the Flag of all Indians".

The Court in this case also noted that several countries permit free use of the National Flag by individuals. For example, Australia, Canada, Brazil and New Zealand permit free use of National Flag by individuals and on the other hand, Japan, Mexico and Sweden do not permit such free use.

The Apex Court in this case held that even though the Flag Code is not a statute, "the guidelines as laid down under the Flag Code deserve to be followed to the extent it provides for preservation of dignity and respect for the national flag".

Conclusively, the Court held that right to fly the National Flag freely is a fundamental right under Article 19(1)(a) of the Indian Constitution but it is subjected to the reasonable restrictions provided under Article 19(2) of the Indian Constitution. Furthermore, the Court held that the use of the National Flag is to be regulated by the provision of the The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971.

State Rep. by The Inspector of Police v. D.Senthilkumar

In this case, the respondent had come to know of a function celebrating Christmas where a cake with the icing of the National Flag was cut. The complainant pleaded that the same amounted to a violation of Section 2 of The Prevention of Insults to National Honour Act, 1971. Section 2 provides "Whoever in any public place or in any other place within public view burns, mutilates, defaces, difiles, disfigures, destroys, tramples upon or [otherwise shows disrespect to or brings] into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both." The magistrate, while exercising his jurisdiction under Section 156(3) of Code of Criminal Procedure, directed for the registration of FIR.

The Madras High Court observed that "A Country’s National Flag is a symbolic manifestation intended as an inclusive, representative and integrated comity. The National Flag, therefore, conjures a rush of pride in the whole being of its citizens.".

The Court held that intention to insult the Flag is an essential ingredient for invoking Section 2 of The Prevention of Insults to National Honour Act, 1971. In the instant case, the Respondent's complaint did not prove any mala fide intention and hence the complain was dismissed.

Sarvadnya D. Patil and Anr. v. State of Goa and Ors. (2001)

In this case, the petitioners had approached the Bombay High Court pleading that the Headmistress of a Convent High School must be punished with three years of imprisonment for not organizing the Flat Hoisting Ceremony on the Goa Liberation Day, that is, 19th December. Furthermore, the petitioners pleaded that Flag hoisting must be made mandatory for public servants and Semi Government Organisations on Independence Day, Republic Day and Goa Liberation Day.

The Bombay High Court had to deal with the question as to whether the omission of hoisting the Flag on Goa Liberation Day would attract the provision laid down by Section 2 of The Prevention of Insults to National Honour Act, 1971.

The Court held that in order to attract Section 2, the act complained of must be intentional and that "omission to hold the flag hoisting ceremony cannot be said to be sui generis with the positive acts mentioned preceding the words “or otherwise”."

The respondent had stated in oath that she did not intend to insult the National Flag and the Court held that her apology was accepted. Furthermore, her failure to organize the ceremony was found to be due to circumstances beyond her control

CONCLUSION

The National Flag stands collectively for the whole nation. It represents the ideals and aspirations of the nation. It is the symbol of a nation's pride and honour. The National Flag represents the national unity and invoked the emotions of all the citizens irrespective of their religion, caste, creed, etc.


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