"Not Standing Up For National Anthem Or Standing Quiet May Amount To Disrespect & Failure To Adhere To Fundamental Duties; Not An Offence Per Se": J&K HC

The Jammu and Kashmir High Court has held that not standing up for National Anthem or singing it may amount to disrespect and failure to adhere to the fundamental duties as enshrined in the Constitution, however, the same is not an offence under the Prevention of Insult to National Honour Act, 1971.

A single judge bench comprising of Justice Sanjeev Kumar quashed an FIR against a college Lecturer for allegedly showing disrespect to the National Anthem in the function conducted on 29th September 2018 for celebrating surgical strike conducted by the Indian Army.

"…though certain conduct of individuals like not standing up while the National Anthem is being played or standing quiet in the assembly engaged in the singing of National Anthem may amount to showing disrespect to the National Anthem but would not, per se, constitute an offence under Section 3 of the Act." The Court observed.

Furthermore, it said:

"Interestingly and indisputably, mere disrespect to Indian National Anthem is not an offence per se. It is only if the conduct of a person amounts to preventing the singing of Indian National Anthem or causing disturbance to any assembly engaged in such singing, it entails penal consequences in terms of Section 3 of the Act."

An FIR was registered against the Lecturer under sec. 3 of the Act after a group of students held demonstrations against him stating that he had shown disrespect to the national anthem in the said function.

The students had then approached the SDM with a written application with a direction to lodge an FIR against him. Subsequently, FIR was registered on SDM's directions.

It was thus the case of the petitioner that the SDM exercising powers of Executive Magistrate, Class-1 was not competent in law to direct the police to register an FIR. Furthermore, it was submitted that his act, if taken to be true on the face of it, cannot be an offence under the Act.

On the aspect of the SDM being empowered to register the FIR, the Court held that a conjoint reading of sec. 154 and 156 of CrPC shows that power to direct investigation in a cognizable case, would necessarily include the power to direct the police to register an FIR.

"If that be the clear legal position, it cannot be gainsaid that under the scheme of the Code, an Executive Magistrate is conferred any power to direct registration of FIR for sub-section (3) of Section 156 of the Code Clearly excludes Executive Magistrate from exercising any power to direct an investigation in the cognizable offence." The Court said.

The Court thus observed that though an Executive Magistrate may not be empowered under Section 156(3) of the Code to direct investigation in the cognizable offence yet he can bring to the notice of the police the information relating to commission of cognizable offence and direct it to perform its statutory duty.

On the aspect of disrespecting national anthem, the Court held that not standing up while the Indian National Anthem is being sung or standing up but not singing the National Anthem along with members of the assembly engaged in such singing may amount to disrespect to the National Anthem and a failure to adhere to a fundamental duties enumerated in Part IVA of the Constitution of India but is not an offence as defined under Section 3 of the Act.

"It is now the fundamental duty of every citizen, who claims fundamental and statutory rights from the State, to abide by the Constitution, respect its ideals and institutions, hold its National Flag and National Anthem in high esteem. Any infraction in this regard shall be treated as breach of fundamental duties which may disentitle a citizen to claim fundamental and other statutory rights." The Court said.

Furthermore, it said:

"It is the conduct that prevents singing of the National Anthem or that causes disturbance in the assembly engaged in such singing, that is declared as an offence under Section 3 of the Act and punishable with imprisonment for a term which may extend to three years, or with fine, or with both."

In view of the aforesaid observations, the Court held that the contents of the FIR do not constitute a cognizable offence and therefore the SDM's observations were 'clearly an afterthought'.

Accordingly, the FIR was quashed by the Court.

Title: DR. TAWSEEF AHMAD BHAT v. STATE OF J&K & ANR

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