How the legal construct of ‘national honour’ encourages toxic nationalism

By vaguely declaring what constitutes insults to national honour, the state has empowered jingoistic individuals to use state machinery to impose their idea of nationalism on others.
Indian national flag
Indian national flag
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April 8, 2007 was a momentous day for IT doyen Narayana Murthy as President Abdul Kalam visited the sprawling Infosys campus in Mysore and interacted with the employees. During the event, the instrumental version of the Indian National Anthem was played. A month later, Murthy was summoned by a Magistrate as an organisation had filed a criminal case under the Prevention of Insults to National Honour Act, 1971. The complainant accused Murthy of having ‘prevented the singing of the National Anthem’ which is an offence under the Act.

What irked the complainant was Murthy’s explanation that they chose to play the instrumental version instead of singing it, as there were dignitaries from other countries on the dais. Murthy even apologised and eventually the High Court quashed the case as it felt that playing the instrumental version and not singing the Anthem did not violate the law. This bizarre case not only allowed an interloper to harass Murthy but also forced him to pay a hefty amount as legal fees.

At first brush, it may seem that this was a classic case of the law being misused by a prickly organisation. However, the legislative history and the underlying theme of the Prevention of Insults to National Honour Act, 1971 suggest that the legal construction of national honour encourages toxic nationalism. The Act intends to prevent insults to national honour by regulating how citizens treat the National Anthem, the Constitution and the National Flag. The legislation enumerates acts that may amount to ‘disrespecting’ the National Flag and its parts. The expression ‘National Flag’ includes pictures, paintings and any visible representation of it on a substance. Some of the acts that have been expressly criminalised include embroidering or printing it on any dress material, using it as a drapery in any form and doing any act which brings the National Flag or the Constitution ‘into contempt’. A person who is found guilty of violating the Act may be punished with a fine or imprisonment upto 3 years.

The broad and vague language of the Act has enabled interlopers to initiate criminal proceedings the moment they spot conduct that they perceive as deviant and posing a threat to national honour. For instance, in Tamil Nadu, a function was held on Christmas to promote national integrity and communal harmony. It was attended by more than 2,500 people (including children) and a National Flag themed cake was cut and served to the participants. This was reported in various newspapers and one of the readers became upset. He filed a criminal case as he felt that by depicting the National Flag on a cake and cutting it, the organisers and participants had violated the Prevention of Insults to National Honour Act, 1971. He also contended that it was inappropriate to cut such a cake at a Christmas celebration as it had nothing to do with national integration and communal harmony.

While the Madras High Court quashed the case after 8 years, it is problematic that the Magistrate had taken cognisance and decided to proceed against the accused. In other words, the complainant was successful in harassing those who did not subscribe to his highly subjective notion of national honour. The vague and broad language of the law enabled him to portray the act of cutting a National Flag themed cake as an insult to national honour. By using criminal law to vaguely declare what constitutes insults to national honour, the state has empowered hypersensitive and jingoistic individuals to use the state machinery and the coercive prowess of the law to impose their idea of nationalism and national honour on others.

By equating the National Flag and the National Anthem with national honour, the state has generated a narrative that prompts people to believe that a person who insults the Flag or the Anthem is guilty of an offence against the state, such as sedition. For instance, this narrative resulted in the incarceration of cartoonist Aseem Trivedi who was accused of sedition and insulting the National Flag after one of his cartoons depicted a woman draped in a National Flag themed sari, being harassed. Such a narrative also makes minorities vulnerable to being ‘othered’ and labelled as ‘anti national’. Jehovah’s Witnesses who refuse to sing the National Anthem pursuant to their genuine religious beliefs have been harassed for disrespecting the National Anthem although they respectfully stand up when it is being sung. Thus, a homogenous concept of national honour threatens pluralism and fundamental rights such as the right to freely profess and practise a religion.

The National Anthem and symbols such as the Emblem and the Flag do not generate meanings on their own and hence how a person perceives them is highly subjective. As Justice Jackson opined in the famous compulsory flag salute case, “What is one man’s comfort and inspiration, is another’s jest and scorn”. When the Constitution enshrines liberty of thought, belief and expression, the law ought to accommodate diversity of beliefs. The state should not only refrain from generating a homogenous narrative on national honour but also not empower interlopers to use vague laws to exterminate mellow narratives and practices pertaining to national honour. Criminal law ought to be confined to protecting lives, limbs and property instead of being used to coerce uniformity. As Tagore had cautioned, nationalism can easily translate into ‘fear of the different’ and go on to ‘stamp out the dissident, deviant and different’. Therefore, laws that encourage chauvinistic narratives and practices of nationalism ought to be reviewed and revamped to reflect pluralism and respect for liberty of thought, belief and expression.

Rahul Machaiah is a lawyer from Karnataka. He holds an LLM in Law & Development from Azim Premji University.

Views expressed are the author's own.

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