Not standing for national anthem is not an offence: Jammu and Kashmir HC

By Express News Service
SRINAGAR: Jammu and Kashmir High Court has ruled that not standing up for the national anthem and not singing the national anthem may amount to disrespect and failure to adhere to the fundamental duties but not an offence.

“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. 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,” reads a judgement issued by J&K High Court judge Justice Sanjeev Kumar.

The judge gave the judgment on a writ petition filed by one Dr Tawseef Ahmad Bhat, who had challenged registration of FIR by Police Station Bani against him under Section 3 of Prevention of Insult to National Honour Act.

Police had registered an FIR against Tawseef in September 2018 for allegedly dishonouring the national anthem at a function held to celebrate Indian surgical strike when he was working as lecturer in Government Degree College Bani on contractual basis. The FIR was registered against him on the directions of SDM Bani, who had received a written complaint against him for dishonouring the national anthem from some college students.

He said he lost his contractual appointment after registration of the FIR.

While challenging registration of FIR on directions of Sub Divisional Magistrate, Bani, Tawseef stated that Executive Magistrate, Class-1 was not competent in law to direct police to register an FIR as only the Judicial Magistrate Class-1 was empowered to issue such directions.

He also contended that the allegations contained in the FIR did not constitute offence under Section 3 of the Act as there was no allegation that he prevented the singing of national anthem or caused any disturbance to any assembly engaged in such singing.

After hearing arguments of both sides, High Court judge Justice Sanjeev Kumar concluded that in the scheme of the Code, an Executive Magistrate is not empowered to direct the police to register an FIR on the basis of a complaint lodged before him but if an information relating to commission of cognizable offence is brought to the notice of an Executive Magistrate, who, after holding an inquiry, finds such commission of offence, he may forward the information to the police for performance of its statutory duty under Section 154 of the Code said

“Failure of the petitioner to participate in the assembly engaged in singing of national anthem, intentionally or otherwise, and roaming about in the school premises where the assembly was engaged in singing national anthem, in my opinion, would not amount to either preventing the singing of national anthem or causing any disturbance to the assembly engaged in such singing,” the court said.

While quashing FIR against the teacher, the judge said, “For the foregoing reasons, I am of the opinion that the contents of FIR, which is based upon a written complaint of the students of the College, do not constitute a cognizable offence and, therefore, registration of FIR and setting the investigating machinery in motion was not called for”.