In an order pronounced by the High Court of Jammu & Kashmir on July 9 2021, the court held that not rising or standing up during the National Anthem would not constitute an offence under the Prevention of Insult to National Honour Act 1971. However, if the person not standing up during the National Anthem disrupts or prevents such singing through any means will be held liable.
The High Court further clarified that not standing up during the National Anthem or standing up but not singing along would not attract an offence as described under Section 3 of the Act. However, it would be an insult to the Fundamental Duties vested in Part IV of the Constitution of India.
Section 3 of the Prevention of Insult to National Honour Act 1971 states:
"Whoever intentionally obstructs the singing of the Indian National Anthem or causes disturbance to any gathering engaged in such singing shall be sentenced with imprisonment for a term which may extend to three years, or with fine, or with both."
The petitioner, Dr Tawseef Ahmed, was a contractual based lecturer at the Government Degree College, Bani. He moved a petition before the High Court seeking to quash an FIR registered against him and questioning the jurisdiction of the Sub Divisional Magistrate.
The petitioner submitted that the claims made in the FIR would not amount to an offence as per Section 3 of the Act, as he didn't cause any disturbance to the assembly. He also submitted that the SDM, an executive magistrate, not a competent authority, could not order the police to file an FIR. Such power rests in the hand of the Judicial Magistrate only.
The Single-Judge Bench of Justice Sanjeev Kumar heard this petition, opined that the only two types of conduct exhibited by a person or persons concerning the National Anthem is penalised under Section 3 of the Act. First, the act that prevents the singing of the National Anthem or causes disturbance in the assembly engaged in such singing.
"Failure of the petitioner to participate in the assembly engaged in the singing of Indian National Anthem, intentionally or otherwise, and roaming about in the school premises where the assembly was engaged in singing Indian National Anthem, in my opinion, would not amount to either preventing the singing of Indian National Anthem or causing any disturbance to the assembly engaged in such singing."
The High Court also clarified that only the Judicial Magistrate could direct the Police to file an FIR and to commence an investigation in cognizable cases, as per the sub-section  of Section 156 of the Code of Criminal Procedure.
The High Court quashed the FIR against the lecturer.
The Facts of the case
There was a celebration of the surgical strike done by the Indian Army in the Government Degree College, Bani. The petitioner joined that celebration along with students and other staff. The celebration began with a National Anthem and the petitioner claimed he too stood up during the National Anthem. The petitioner informed the court that while taking the BA 5th Semester exams, he was told that a student group was holding a protest against him for disrespecting National Anthem. Later, some students after being instigated by a computer clerk, Pawan Sharma, approached the SDM with a written complaint and the SDM directed the Police Station Bani to lodge an FIR. Thus, an investigation started as per the direction of the SDM.