A video that purports to show a hyper-nationalistic group forcing someone who did not stand up for the national anthem to leave a movie hall in Mumbai has gone viral.  In October 2014, I wrote about the law on the national anthem and connected dots with the position in nationalistic societies like the United States and Israel. Here are the two pieces consolidated in one place.



October 24, 2014

The lack of awareness of the law on the national anthem among law enforcers is disturbing.

It is a controversy brewing into a storm. This paper reported a patriotic mob turning its fury against a foreign national who did not stand to attention when the national anthem was played in a city movie hall. Dismissing both the mob and the victim, police officers are reported to have discouraged the couple against filing an official complaint, by suggesting that not standing up for the national anthem could amount to a crime.

The national anthem, and the lack of awareness of the law around it, is turning it into a social nightmare. In August this year, a Kerala magistrate had refused bail to a student of philosophy who had refused to stand up for the anthem. The magistrate is reported to have commented that his alleged crime was worse than murder. The local police took the incident as a cue to go through his Facebook posts, and charged the kid with sedition. The kid eventually got bail from the High Court, but only after spending a month in jail, with he next few years of his life consigned to legal proceedings.

In 2004, dealing with public interest litigation, the Madhya Pradesh High Court directed that the movie Kabhi Khushi Kabhi Ghamshould not be screened in any movie hall unless the national anthem scene embedded in the film were deleted. The grouse was that the anthem would be insulted if viewers did not stand up when it played in the movie. The court directed the film’s certification to be revoked unless this cut was made. On appeal, the Supreme Court set it aside. The court took on board instructions from the Government of India that clarified that the audience was not expected to stand to the national anthem if incidentally played in a film. The Court ruled that standing to the anthem in the midst of a movie “would create disorder and confusion, rather than add to the dignity of the national anthem”.

Way back in the 1980s, the Supreme Court had intervened firmly and clearly to hold that three Kerala kids belonging to the Jehovah’s Witnesses sect had done no wrong when they refused to sing the anthem, which they believed would violate their freedom to profess their religious faith. The students would stand to attention for the anthem but refused to sing along. The school, in response, rusticated the kids. (The clash of beliefs of this sect with social themes worldwide is legendary. The judiciary in the UK has had to rule on members of the sect refusing blood transfusion, which has also inspired a recent book The Children Act, by Ian McEwan.)

The Kerala High Court found the case to be in favour of the school while the Supreme Court directed that the kids be re-admitted to school and be permitted to continue without hindrance. Allowing the appeal with costs, the Supreme Court sighed in closing: “We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.”

Yet another lunatic example of the anthem being used to foment trouble was a private criminal complaint against Shashi Tharoor for exhorting an audience to place their right hand on the heart when singing the anthem. He was being American, seeking patriotic zeal right after the Mumbai terror attacks, apparently. He was discharged only last year. The complainant surely did not know much about the Rashtriya Swayamsevak Sangh’s chest salute.

The philosophy student in Kerala and the foreign national in the Mumbai movie hall have intellectual issues about standing up for the anthem, just as the Jehovah’s Witnesses have religious issues with it. But they cause no disruption to those differently-minded.

The lack of awareness of the law – for sure, on the part of the mob, and sadly, also on the part of the law-enforcers, worshipping false Gods – is disturbing. The only real legal provision relating to dishonour to the anthem is Section 3 of the Prevention of Insults to National Honour Act, 1971. It criminalizes intentional prevention or disruption of singing of the anthem. Surely, someone who does not subscribe to the notion of standing to attention, without disrupting or preventing others, would never be guilty.

Twitter: @SomasekharS



October 31, 2014

The conflict between nationalism and its expression is universal, even in nationalistic states like Israel and the US.

Last week’s column on Indian law on the national anthem drew reactions in two extremes. One was of being pleasantly astonished to learn how liberal Indian law can be. The other was of finding the very idea of not doing what is dear to the rest of society, abominable.

National anthems conjure imagery of national honour and pride. A former Reserve Bank of India governor M. Narasimham had a unique hobby collection: a repertoire of national anthems. The eyes of every foreigner lighting up when he would quote from her nation’s anthem at social gatherings was a sight to behold. Surely, it stood him in good stead as an economic diplomat, as India’s executive director to the World Bank and the International Monetary Fund.

No matter how alien a nation, it is widely considered courteous to stand at attention to her anthem when it is played. It can, however, be a prickly issue, debated and decided as per individual discretion. At the famous Madison Square Park address in New York by Prime Minister Narendra Modi, the United States’ national anthem was rendered before he took stage, and it appeared that he would stand only for the Indian national anthem. However, it was played yet again after he took stage and he stood through it with a frown, and then stood for the Indian anthem with a beaming smile.

Reactions to last week’s column even from lawyers have been divided on strongly emotive lines. The fault line is akin to Indian secularism. “Psuedo-liberal” – cry the nationalists, for whom not standing to attention is just unacceptable rudeness. To them, any reason for not falling in line is just plain hot air to justify rudeness. “Hyper-nationalist” – cry the liberals, for whom standing to the national anthem just before watching a movie like Humshakals is in tself an insult to national honour.

The lay of the land in other homelands points to a universal tension on the issue. The United States has a law that says every person “should” face the flag and stand at attention when the national anthem is being played. Yet, the US has an overwhelming lease of constitutionally-guaranteed freedom of expression. The US anthem law is considered to be only an advisory provision, and not mandatory. If intended to be mandatory, the law would have used “must” instead of “should”, say US lawyers. Dealing with cases involving criminalizing the desecration of the US national flag, the US Supreme Court ruled that the right to burn the flag as a means of expression reflects the freedom that that nation stood for.

Yet, the court of public opinion keeps the issue alive. Media polls point to public opinion on American streets lending support to laws that would criminalize insults to national honour, and politicians keep trying to introduce a law criminalizing it all over again. Israel, the epitome of nationalism for many Indians, presents an interesting situation. Akin to Islamic republics and kingdoms, Israel is a Jewish state. Its national anthem sings to the yearning of the Jewish soul.

Just two years ago, Justice Salim Joubran, an ethnic Arab who made it as judge of the Israeli Supreme Court, did not sing the anthem after being sworn in and just stood through it. Rightwing Israeli Prime Minister Benajamin Netanyahu candidly acknowledged the judge’s sentiment, at least in public. Last year, a member of the Israeli Parliament Hanin Zuabi rushed out of the room immediately after being sworn in because she did not want to stand when the anthem was being sung. Leaving the room was considered rude by some. Others considered it more polite than sitting through it or standing without singing it.

There is a new Indian trend with anthems. Various state governments have started adopting state anthems, which can give poetic license to divisive parochialism. But the right to have a state anthem is itself reflective of the freedom of expression. Yet, the right not to stand to a state anthem, if it conflicts with one’s feelings for a united India, is also protected by the freedom of expression.

Craving to criminalize a contrarian view by fettering the freedom that makes India a Republic is in itself an anti-national sentiment.

Tweets: @SomasekharS