NAME – BIVABASU KUNDU

SUBJECT – CONSTITUTION ASSIGNMENT

TOPIC – The legal scrimmage between National Anthem and

Freedom of Expression

COLLEGE – NMIMS, Navi Mumbai

SAP ID - 81022019213
 The legal scrimmage between National anthem and Freedom of
expression

REFERENCE CASE LAWS

Shyam Narayan Chouksey v. UOI (2018 ) 2 SCC 574.

Bijoe Emmanuel v. State of Kerala 1987 AIR 748

Excel Wear Etc. v UOI

Texas v. Johnson

West Virginia State Board of Education vs. Barnette

INTRODUCTION

The tussle between extravagant patriotism and restrained nationalism has been long debated. The
patriotism has often been hegemonized by countries taking into military, political, economic and
even cultural shape. Patriotism however is a personal sentiment and every person is entitled to
express it his/her own ways - a fundamental right which is provided under Article 19(1)(a).
Judicial censorship over speech & expression insulates the state from being challenged by the
infringement of such right and thus would not necessitate the court to consider the plea in the
light of Article 19(1) or against such judicial determination unless it amounts to subsisting
reasonable restriction on such equal footing provided under Article 19(2). The Supreme Court,
however, cannot have it both ways whereby it sought to restrict speech by equating judicial
opinions with "law" under Article 19(2) and shield itself from having its decisions challenged in
writ procedures for violating Article 19(1)(a) concurrently. 1The enforcement of such expression

1
"Expressing Patriotism Over Freedom Of Speech And Expression: A Judicial Overreach By Supreme
Court - Lawbhoomi". Lawbhoomi, 2022, [Link]
speech-and-expression-a-judicial-overreach-by-supreme-court/.
of patriotism on public platforms (cinema halls) not only becomes violative of the right to
freedom & expression but also curtails the personal choice not to express and one’s right to
freely profess a particular religion provided under Article 25(1). The apex court ruled in Excel
Wear Etc. v UOI, that Article 19's fundamental right has reciprocal rights, such that "the right to
freedom of speech includes the right not to speak, and the right not to form an association is
inherent in the right to organise associations."2 Similarly, Article 19's right to freedom of
expression should also include the right not to express. The judgement by SC in the case of
Shyam Narayan Chouksey set a precedent which prioritises constitutional patriotism over one’s
individual rights of expression. The rules made it required to stand for the national anthem when
it is played prior to the commencement of a feature film, but are silent and ambiguous
concerning when the anthem is played during the film, rendering the requirement arbitrary. The
SC however failed to test whether such imposition of precedent amounts to reasonable restriction
falling under the ambit of grounds mentioned in Article 19(2). Further, SC resorted to
constitutional patriotism as justification in order to encroach upon the personal freedom of
expression. In the current ruling, the Court seemed to have sacrificed 'individual rights' on the
altar of 'constitutional patriotism' when it said, "It does not permit any other conception or
perception of individual rights that have been individually conceived.

OBJECTIVES -

This paper focuses on the applicability of Article 19(1)(a) with respect to the National Anthem
controversy touching upon the aspects of constitutional patriotism. The paper further explores
the scope of patriotism and the arbitrariness associated within it.

RESEARCH QUESTIONS

● Whether the enforcement of fundamental duties under Article 142 of the constitution
attracts contempt proceedings ?

2
Delhi, CCG. "Supreme Court’S National Anthem Order: Forced Patriotism Vs. Freedom Of Expression".
[Link], 2022, [Link]
order-forced-patriotism-vs-freedom-of-expression.
 ● Whether enforcement of such guidelines was binding on all the courts under Article 141
of the constitution?
● Whether the enforcement of guidelines defeated the procedure established by law given
under Article 21 ?
● Whether there existed an imposition of reasonable restriction in the precedent set by SC ?
● Whether constitutional patriotism is the culmination of individual rights to freedom of
speech & expression?

Constitutional and legal provisions and explanation - Observation held by the

court

The main concern is that by taking the patriotism test into the cinema hall, by force feeding a
notion of nationalism to people seeking entertainment, the court has not just offered an instance
of striking judicial overreach. It has also let down all those who have come to look up to it as a
custodian of constitutional freedoms. That the court is invoking the Constitution while moving
against its spirit is even more disquieting.

The Prevention of Insults to National Honour Act, 1971

The Prevention of Insults to National Honour Act, 1971 is an Act of the Parliament of India
which prohibits the defamation or insult to the country’s national symbols, including the
National Flag, Emblem the constitution, the National Anthem and map of India including
contempt of Indian constitution.
As per stated by the act:

“Whoever intentionally prevents the singing of the national anthem or causes disruption to any
gathering engaged in such singing shall be punished with imprisonment for a term, which may
extend to three years, or with fine, or with both.”

The Supreme Court seems to have not taken into consideration various other judgements over the
years, such as the Suresh Kumar Gupta case where a PIL was filed to make it mandatory to
play the national anthem before the start of work in the High Courts and District Courts which
has dismissed saying that the sense of belonging is an inherent feeling and not a matter of
compulsion and compared the National Anthem with the prayer to Divine which is done by an
individual for personal benefits and the recital of National Anthem daily cannot be regarded as to
instil any patriotism or sense of duty in the citizens3. In the Bijoe Emmanuel Case4, Supreme
Court ordered that forcing them to sing the national anthem is a violation of the fundamental
right of freedom of speech and expression under Article 19(1)(a) as the children did not either
cause any disturbances to those engaged in singing or insult the national anthem.

Sitting at the time of the playing of the national anthem is in no way disturbing anybody else
from singing or paying their honour to the national anthem. At the same time, an overt act is
defined as an act that is intended to seriously harm or injure another person5 and accordingly, the
act of sitting during the national anthem cannot be included within the ambits of the overt act and
is merely an individual exercising their reciprocal right under Article 19 i.e. right not to speak
even though it is not mentioned explicitly, as held in the case of Excel Wear Etc. V Union of
India6.

Following the same analogy, the right to expression under Article 19 should also include within
it a right not to express. The expression of patriotism should be left to be an individual’s personal
choice and ought not to be mandated through a decree or any law passed by the legislature which
was the view of our constitution makes who made it a Fundamental Duty to respect the national
anthem and did not prescribe specific standards such as being required to sing or stand to show
respect.

Article 51
Article 51A of the Indian Constitution talks about Fundamental duties. These duties were added
by the 42nd Amendment of the constitution of India in 1976.

3
Suresh Kumar Gupta v. State of Uttar Pradesh, AIR 2017 All 10
4
Bijoe Emmanuel & Ors vs State Of Kerala & Ors 1987 AIR 748
5
Bryan A Garner, Black’s Law Dictionary (9th edn, 2009) 1214
6
Excel Wear Etc vs Union Of India & Ors 1979 AIR 25
As per the law, Article 51A. Fundamental Duties: –

“It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the
National Anthem;”

The Supreme Court in its judgement took shelter under Article 51A to direct individuals to
compulsorily stand up when the national anthem is being played. The fundamental duties are not
enforceable through writs and can only be used as a mechanism for the interpretation of
ambiguous statutes7. The Judgement thus made the Fundamental Duty enforceable with the
powers vested in it through article 142 as non-compliance of the Judgement may attract contempt
of court proceedings. “If the court is supposed to enforce respect for the National Anthem on
citizens, it should also enforce the other fundamental duties in Article 51A,”8 said Justice
Chandrachud which was in complete agreement with the fact that Article 51A is very broad and
among the fundamental duties citizens are required to develop humanism, develop scientific
temper and a spirit of inquiry and the supreme court cannot enforce all these duties. The
judgement gives a vague understanding which is capable of misuse and without giving notice of
their actual meaning to persons of common intelligence, it leaves them in a sea of uncertainty.

The guidelines in the judgement make it mandatory to stand up for the national anthem when it is
being played before the start of the feature film but remains silent and vague about when the
anthem is being played as a part of the film. The judgement thus does not qualify as fair and

7
Surya v Union of India, AIR 1982 Raj 1
8
India, P. T. of. (2017, October 23). No need to stand for national anthem in movie halls to prove patriotism: SC.
Business Standard News. Retrieved September 30, 2022, from [Link]
affairs/no-need-to-stand-for-national-anthem-in-movie-halls-to-prove-patriotism-sc-117102300905_1.html
reasonable but arbitrary. The central problem present here is the fact that by taking the patriotism
test to the cinema halls, by forcibly feeding an old preconceived notion of nationalism to people
who just wanted to have some entertainment, the court has not only offered an instance of
judicial overreach but has also let down people who look up to it for the protection of
constitutional freedom.

Article 19 and Constitutional Patriotism

The article 19(1) (a) of the Constitution of India states that, “all citizens shall have the
right to freedom of speech and expression”.

The philosophy behind this Article lies in the Preamble of the Constitution, where a
solemn resolve is made to secure to all its citizens, liberty of thought and expression. The
exercise of this right is, however, subject to “reasonable restrictions” for certain purposes
being imposed under Article 19(2) of the Constitution of India.

Main Elements of Right of freedom of Speech and Expression:

1. This right is available only to a citizen of India and not to foreign nationals.
2. The freedom of speech under Article 19(1) (a) includes the right to express one’s views
and opinions at any issue through any medium, e.g. by words of mouth, writing, printing,
picture, film, movie etc.
3. This right is, however, not absolute and it allows Government to frame laws to impose
reasonable restrictions in the interest of sovereignty and integrity of India, security of the
state, friendly relations with foreign states, public order, decency and morality and
contempt of court, defamation and incitement to an offence.
4. This restriction on the freedom of speech of any citizen may be imposed as much by an
action of the State as by its inaction. Thus, failure on the part of the State to guarantee to
all its citizens the fundamental right to freedom of speech and expression would also
constitute a violation of Article 19(1) (a).

‘Constitutional Patriotism’ is a concept borrowed from German jurisprudence. It denotes

allegiance to constitutional principles as a means of fostering social cohesion and dwells on
developing a common identity for all citizens over their individual religion, culture, tradition etc.
According to this concept, constitutional principles should serve as the binding factor and
nothing else. In this context, the Court’s rationale behind making it mandatory to play the
national anthem as a means to ‘instil patriotism and nationalism’ is off the mark as the national
anthem, if anything, is symbolic of the nation and not of the constitution.

The Court seems to have sacrificed ‘individual rights’ at the altar of ‘constitutional patriotism’
when it held, “It does not allow any different notion or the perception of individual rights that
have individually thought of have no space. The idea is constitutionally impermissible.” While
curtailing individual rights, the Court has used terms like ‘constitutional patriotism’,
‘nationalism’ and ‘patriotism’ liberally throughout the order without enunciating the variance in
their import.

It has been argued that free speech and expression can be curtailed under Article 19(2) only by
an existing law or a law made by the State and no other mechanism. In the absence of any law or
constitutional provision to justify its actions, the Court has resorted to ‘constitutional patriotism’
as a justification to encroach upon the freedom of speech and expression of people.

Case laws

1. Bijoe Emmanuel & Ors vs State of Kerala & Ors

Background

Three students namely Bijoe, Binu and Bindu, studying in a school near Kottayam, were
expelled from school after they refused to sing the national anthem of India. Their father had
asked them not to salute the flag or sing the anthem because it was against their religious faith in
Jehovah’s Witnesses. Through their representative, they filed a writ petition in the High Court of
Kerala, seeking to restrain authorities from preventing their school attendance.

Arguments Advanced
The petitioners argued that even if they do not sing the Anthem, they do stand up on such
occasions to show their respect to the National Anthem. They desisted from actual singing only
because of their honest belief and conviction that their religion did not permit them to join any
rituals except it be in their prayers to Jehovah their God. They further submitted that they truly
and conscientiously believe what they said was not in doubt. They did not hold their beliefs idly
and their conduct was not the outcome of any perversity. They emphasised that singing the
anthem was idolatry and an act of unfaithfulness to their God.

They alleged that their expulsion amounted to an infringement of their fundamental rights to
freedom of expression under Article 19 and freedom of religion under Article 25 (freedom of
conscience) of the Constitution of India. The High Court dismissed the petition on the ground
that no word or thought in the national anthem could offend any religious beliefs.

Judgement

Subsequently, they appealed the decision to the Supreme Court of India. The Court found their
expulsion in violation of both Articles 19 and 25 of the Constitution.

This case is profoundly significant because it affirms that no one can be legally compelled to
violate his conscientiously held religious beliefs. While recognizing that fundamental rights are
not absolute and are subject to public order, morality, and health, the Supreme Court limited the
State’s ability to impose on its citizens arbitrary and disproportionate restrictions. The decision
stated: “To compel each and every pupil to join in the singing of the National Anthem despite his
genuine, conscientious religious objection would clearly contravene the rights guaranteed by Art.
19(1)(a) and Art. 25(1).”

The ruling also safeguards constitutional freedoms for minority groups. The Court further stated:
“The real test of a true democracy is the ability of even an insignificant minority to find its
identity under the country’s Constitution.” Justice Reddy added: “Our personal views and
reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the
protection of Art. 25.”

Even today, Bijoe Emmanuel v. State of Kerala stands as one of the pillars of free speech in
India. Jehovah’s Witnesses are happy to have had a part in contributing to the constitutional
freedoms of all citizens in India.

2. Shyam Narayan Chouksey v. Union of India

Background

In this case, the Public Interest Litigation was filed by a Bhopal based activist on 24th July 2003.
Mr. Shyam Narayan Chouksey had gone to watch the film “Kabhi Khushi Kabhi Gham” in the
year 2003. When the national anthem was played in the movie, he stood up respectfully but he
was the only person who stood up. Those behind him said he was obstructing their view, instead
of standing up. They asked him to sit down. He got offended by this experience as also the
“commercial use of the national anthem” in the film. Mr. Chouksey filed a PIL in Madhya
Pradesh High Court in Jabalpur. A division bench agreed with his contention and banned the
screening of the film across India.

Judgement

This order was later stayed. Supreme Court (Coram of Hon’ble Justice Dipak Misra and Amitava
Roy) gave the following directions on 30/6/2016 to be scrupulously followed:

● There shall be no commercial exploitation to give financial advantage or any kind of

benefit. To elaborate, the national anthem should not be utilised by which the persons
involved in it either directly or indirectly shall have any commercial benefit or any other
benefit.
● There shall not be dramatisation of the national anthem, and it should not be included as a
part of any variety show. It is because when the national anthem is sung or played it is
 imperative on the part of everyone present to show due respect and honour. To think of a
dramatised exhibition of the national anthem is inconceivable.
● National anthem or a part of it shall not be printed on any object and never be displayed
in such a manner at such places which may be disgraceful to its status and tantamount to
disrespect. It is because when the national anthem is sung, the concept of protocol
associated with it has its inherent roots in national identity, national integrity and
constitutional patriotism.
● All the cinema halls in India shall play the national anthem before the feature film starts
and all present are obliged to stand up to show respect to the national anthem.
● Prior to the national anthem being played or sung in the cinema hall on the screen, the
entry and exit doors shall remain closed so that no one can create any kind of disturbance
which will amount to disrespect to the national anthem. After the national anthem is
played or sung, the door can be opened.
● When the national anthem shall be played in the Cinema Halls, it shall be with the
National Flag on the screen.
● The abridged version of the national anthem made by one for whatever reason shall not
be played or displayed.
● Hon’ble Supreme Court has further stated that it is the sacred obligation of every citizen
to abide by the ideals engrafted in the constitution. And one such ideal is to show respect
for the national anthem and National Flag. The citizens of this country must realize that
they live in a nation and are duty-bound to show respect to the national anthem which is
the symbol of constitutional patriotism and inherent national equality.

INTERNATIONAL PERSPECTIVE

The infringement of personal freedom of speech & expression is not a new phenomenon and
hence was discovered more in autocratic or dictatorial military regimes. However, developed
western nations also had to face the same tragedy whereby on several occasions there was
infringement of individual’s right to freedom & expression on the refuge of public policy,
prioritised sovereign interests & reasonable restriction. However, this topic is narrowed down to
the laws regarding the singing of the National Anthem and overlooks their rules on expression of
nationalism.

In countries like Hong Kong falling under the special administrative power of China, a
controversial & prohibitive Ordinance prescribing the standards & etiquettes for expression of
the National Anthem and the criminal sanctions for non-compliance was passed during the
unrest. This was done for the purpose to preserve the dignity of the National Anthem, regulate
the playing, singing & broadcasting and promote patriotism. The enforcement of such ordinance
is currently justified in order to uphold dignity while constraining the use of the National
Anthem for any other purposes, even in parodies. The interplay between the restrictions set by
the respective Ordinance and the copyright protection created much confusion & uncertainties by
not only sanctioning the individual’s right to expression but also triggering administrative &
criminal proceedings on the dissidents. The effects of both the copyright laws & the Ordinance
fully stifled any form of alteration or publication of the same which is ultimately presumed to be
an insult to the National Anthem. Therefore, mainland China while imposing such restrictions by
using the shelter of special administrative powers & official judiciary has overextended its
jurisdictionary powers by allowing such enforceability to be directed by Chinese copyright
protection laws.

Further, copyright protection of the National Anthem in many nations was generally abolished
courtesy of the death of the author. However, few exceptions include countries like France,
Korea & Uganda; the right persists with the original author throughout their life leading to legal
disputes.

In another case of Texas v. Johnson, the dispute arose in a sporting event whereby some
students kneeled down to protest against racism & police brutality during the playing of the
National Anthem triggering the breach provided under 36 US code (b)(1)(C), which specifies
the conduct during playing of the National Anthem. The breach of the same code which specifies
standing & removing their headdress sparked a nation-wide debate on the First Amendment of
the USA, whereby the same conduct was perceived as violative of the First Amendment. The
arguments revolved around the contentio whether symbolic speech is granted the same right as
speech in the First amendment, whether conduct of kneeling down falls under the ambit of
symbolic speech and whether such conduct was to be perceived as a form of political expression
for which the protection is provided in the First Amendment. Further, the First Amendment
recognises and protects the freedom of speech and is inclusive of any form of symbolic speech
unless it undermines dignity. Moreover, the amendment frees anyone being subjected to
criminal or civil liability for forming any form of opinion as long as it does not insult the
constitution. Thereby, any form of political expression or opinion is welcomed even during the
playing of the National Anthem and would not warrant any restriction as such political speech is
given highest protection under the First Amendment. 9Thereby, such action of political
expression was held worthy of protection under the First Amendment.

In another case with a similar lineage, the state of Massachusetts & Baltimore invoked a
prohibitive law against Russian composer Igor Stravinsky who changed the harmony of the
National Anthem - “Star Spangled Banner” and gave it an orchestral treatment. This was done
in order to cease justification of anti-americanism leading to negative reviews. Following the
order, the law prohibited any form of musical alteration and desecration of the National Anthem
to celebrate their patriotism.

However, following the enactment of First Amendment and such future renditions many
musicians began to add their own embellishments. Currently, the First Amendment offers
protection to any individual using symbolic expression in the form of kneeling down or
remaining silent during the rendition of the National Anthem. This expressive conduct remains
protected against governmental (but not private) action under the free speech clause of the First
Amendment, which the Supreme Court has also extended to the states via the due process section
of the Fourteenth Amendment.
10

Similarly, in the historic case West Virginia State Board of Education vs. Barnette, the US
Supreme Court ruled unconstitutional a resolution that permitted schools to dismiss children who

9
"National Anthem, Government Regulation". [Link], 2022, [Link]
amendment/article/2148/national-anthem-government-regulation.
10
"National Anthem, Government Regulation". [Link], 2022, [Link]
amendment/article/2148/national-anthem-government-regulation.
refused to salute the flag and recite the Pledge of Allegiance. The US Supreme Court ruled that
requiring pupils to salute and recite the Pledge constituted coerced speech and violated the First
Amendment right to freedom of speech and expression.

Conclusive Analysis

The authority of curtailing Freedom of speech & expression is vested with the state legislature
and the judiciary has to compulsory take the shelter of constitutional provisions in order to
enforce or review any decree. Further, Article 142 of the constitution does not licence the court
to enforce any decree or order unless it is done in its exercise of its jurisdiction and testing such
imposition as a reasonable restriction so as to avoid populism and arbitrariness. Forcing everyone
before the play of the National Anthem is further an arbitrary exhibition of nationalism and
should not be equated with the stand for respect. The Court has failed to note that though there is
an inherent compulsion to comply with the fundamental duties, there is no legal sanction
provided for the violation or non-performance of such duties. 11

By participating in direct judicial censorship, the Court circumvents this essential two-step
protection and circumvents Parliament entirely. By explicitly controlling speech, it ensures that
the deliberative process envisioned by the Constitution when Article 19(2) compels the State to
"create a law" becomes a sham.12 Consequently, such court intervention contradicts the principle
of the separation of powers. The court used the precedents to capitalise the enforcement of
fundamental duties and thereby was a classic example of Judicial overreach. Regarding the
fundamental responsibilities of citizens, the opinion of the bench that issued the present order
differs from that of the bench in 1985.

The initial fallout of the precedent was the result of arrest warrants being issued to individuals
for not standing up for the National Anthem & disrespecting it. There already have been

11
Delhi, CCG. "Supreme Court’S National Anthem Order: Forced Patriotism Vs. Freedom Of Expression".
[Link], 2022, [Link]
order-forced-patriotism-vs-freedom-of-expression.
12
"The Illegality Of The Supreme Court’S National Anthem Order". Indian Constitutional Law And
Philosophy, 2022, [Link]
national-anthem-order/.
instances of extremism, jingoism and populism in the past impairing harmony & public
tolerance. The precedent set by the court on Shyam Narayan Chouksey didn’t even consider
physically disabled or paraplegic men/women abandoning their Right to life & liberty as
provided under Article 21.

The concept of patriotism overshadows any other form of expression any individual tries to
symbolise, often overlapping the instinct of Nationalism. Throughout the paper, we have tried to
segregate various judgements and case laws and came to an inference that “Patriotism” has not
been defined and neither it takes any form of shape. There are various arbitrariness while trying
to discern the very concept of constitutional patriotism and the enforcement of the same is bound
to affect the rights of other individuals. The culmination of the nationalism instinct of every
individual is simply impossible as every individual expression would take a different shape. And
therefore, every expression must not be clubbed or directed together in order to fulfil the object
of upholding patriotism as the state would be no different from dictatorial regimes. Every
expression is different from one another and shall be left to freely express their personal
sentiments and should not be curtailed or encroached upon, and should not be equated the same
as it would defeat the purpose of Part III of constitution. In a democratic country like India, such
enactment infringing one’s individual right of freedom of speech & expression makes the law &
order situation fragile as such scenarios have already led to protests & public unrest. Thereby,
the state legislature along with the judiciary has to take extra precaution in order to maintain the
borderline difference between the freedom of speech & expression and the reasonable
restrictions it proposes to impose. The ideals of our constitution preaches tolerance and further
gives the citizen the right to stay silent.

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Copyright, Freedom of Speech and the Insult to the National Anthem -

Tianxiang He*