Maya-Mahmood-Mahatma
Recently Uttar Pradesh Chief Minister Mayawati named Gandhiji a ‘Natakbaaz.’ Expectedly, the mainstream media downplayed it and the Congress party’s response was muted for obvious reasons. How the media and the Congress would have reacted if the comment had been made by a BJP leader is left to our imagination.

Still, Mayawati’s remark prompted Dr. Tahir Mahmood, former chief of the Minorities Commission and Member, Law Commission, to demand amendments in the law so that those who ‘insult’ the ‘Father of the nation’ are duly punished. 
 

As a member of the Law Commission of India, Tahir Mahmood said he would write to the Chairman of the Commission for amendments in ‘The Prevention of Insult to National Honour Act, 1971’ and the ‘Representation of People’s Act, 1951’, so that the ‘honour’ of the ‘father of the nation’ is safeguarded and the concerned violator punished and debarred from contesting elections. In simple terms, he wanted to include Gandhi in the list of National Symbols such as the Constitution, National Anthem and National Flag.   
 

Although Gandhi was tagged with the title ‘Father of the Nation’, the invaluable sacrifices made by hundreds of leaders of the Freedom Movement and thousands of their followers tend to be undermined. In fact, the ‘credit’ for obtaining freedom cannot be given to Gandhi alone, as there is a large section of the citizenry which believes that he reaped the benefits of hard work put in by his predecessors and contemporaries. Safeguarding the honour of Gandhi alone doesn’t seem a wise move. It also doesn’t make any sense to equate individuals with national symbols, for public personalities cannot escape public and historical scrutiny. 
 

As scrutinizing and criticizing is different from insulting, a ‘Prevention of Insult to National Icons Act’ would certainly open a Pandora’s box, because determination of ‘National Icons’ and differentiating critical remarks and insulting remarks would be very difficult. It requires a wide debate and a consensus needs to be arrived at, but practically such an ‘Act’ is not feasible. 
 

Assuming that such an ‘Act’ gets passed in Parliament, its implementation would leave much to be desired, as evidenced by the present sad state of affairs in the implementation of ‘The Prevention of Insult to National Honour Act, 1971’.
 

Affront the nation, abuse its flag
 

Recently in Tamil Nadu, on 25 April 2009, hooligans belonging to Tamil separatist / pro-LTTE outfits like Tamil Desiya Viduthalai Katchi (Tamil Nationalist Liberation Party) and Tamil Desiya Podhuvudamai Katchi (Tamil Nationalist Communist Party) conducted protest demonstrations against the Indian government’s so-called indifferent attitude to the Sri Lankan Tamil issue, and attempted to burn the Indian National Flag. While eighteen persons in Chennai, seven in Thanjavur and eight in Coimbatore were arrested in time before they burnt the flag, four persons in Erode were arrested after they burnt it.

The police have registered cases against the goondas under sections 147 (unlawful assembly), 188 (disobedience to an order promulgated by a government servant) of the Indian Penal Code and Section 2 of the Prevention of Insults to National Honour Act, 1971 (amended 2003).  
 

At this juncture it is pertinent to note another incident, in which, hundreds of activists belonging to similar Tamil separatist organizations such as Tamil Desiya Iyakkam (Tamil National Movement) and Tamizhar Ilaignar Iyakkam (Tamilian Youth Movement) apart from MDMK (Marumalarchi Dravida Munnetra Kazhagam), PDK (Periyar Dravida Kazhagam) and PUCL attacked an army convoy in Coimbatore on 2 May 2009. This attack was also in support of the LTTE and against the Indian government.

Though hundreds of hooligans were involved in the incident, only 44 were arrested; only three were slapped with the National Security Act. 
 

Every citizen is required to respect the Armed Forces, as they are protectors of the nation’s sovereignty and territorial integrity. But, as anti-national blood is running in the veins of these separatist organizations, they attacked an army convoy and similar organizations burnt and attempted to burn the national flag. 
 

Confront the court and get bail! 
 

In the national flag burning case, when the eight accused from Coimbatore applied for bail in the Madras High Court and it came up for hearing on 9 June, Justice R Reghupathy laid out a condition that the accused must hoist the national flag daily in front of their residences for one week! He was under the impression that they would realise the pristine value of the national symbol and their obligations in upholding the sanctity of such symbols. 
 

While four persons agreed to abide by the ‘tough’ condition, three others refused to accept it. They approached the High court on 23 June to modify its order, saying they could not be compelled to do an act against their conscience.

Amusingly, in course of the argument, the petitioners’ advocate S. Duraisamy (belonging to DK) openly told the court that protests like burning the national flag are not new to Tamil Nadu and audaciously cited the 1957 incident of DK/DMK cadres burning the Indian Constitution under the leadership of Periyar E V Ramaswamy. The case was adjourned.
 

When the case came up for hearing again on 1 July, the petitioners’ advocate argued that the bail condition infringes their ‘fundamental rights’ and that they should not be forced to hoist the flag in front of their houses and requested the court to modify the condition. But Justice Reghupathy observed that, “it is obligatory for every citizen to conscientiously follow the fundamental duties enshrined in Article 51A of the Constitution” and added that, “without honouring his fundamental duties, a citizen cannot make claims to safeguard his fundamental rights to freedom of expression.”

He dismissed the petition and ordered the police to submit the final report within a week and the lower court to complete hearings within three months. He also directed the Chief Secretary to constitute a committee comprising officials belonging to the legislature, bureaucracy and judiciary to formulate ways and means for the enforcement of the fundamental duties of a citizen as per Article 51A of the constitution so that a law is enacted in accordance with it.    
 

Meanwhile, the bail applications of the army convoy attackers also came up for hearing on 23 June before the same Justice R Reghupathy. In his order granting conditional bail to ten persons belonging to MDMK and PUCL, Justice Reghupathy said that the petitioners would be released on bail on their executing a bond for Rs.10,000/- with one surety for a like sum to the satisfaction of the Judicial Magistrate, Palladam (near Coimbatore). 
 

Directing the petitioners to report before an orphanage, named by the magistrate, and do service there for three hours a day for one week, he said that on completion of the service they should produce a certificate to that effect from the Head of the orphanage to the magistrate. As per the order, ten persons including Peoples Union for Civil Liberties activist Pon Chandran and M. Krishnasamy of the Marumalarchi Dravida Munnetra Kazhagam (MDMK), besides six MDMK activists and a Periyar Dravidar Kazhagam (PDK) activist were released on 1 July. 
 

The Law and the Court
 

The Prevention of Insults to National Honour Act 1971 says, “Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both”.
 

When even a ‘word’, either spoken or written, disrespecting the national flag is considered a crime under the Act, one could not understand the High Court’s decision to grant bail to those who attempted to burn the national flag, especially when the lower court refused bail to the accused in view of the seriousness of the crime. The accused are not innocent persons. They are from a separatist organization which doesn’t believe in the sanctity of national integration and are all hardcore anti-social elements acting in support of a terrorist organization.

One cannot digest the fact that the High Court had laid out a condition that those anti-national elements must hoist the national flag for a week, under the assumption that they would get reformed! Even when the defense lawyer attempted to justify his clients’ action by referring to the burning of the Constitution by Periyar EVR and DK/DMK cadres, the Honourable High Court did not dismiss the bail petition. Instead it attempted to force this ‘tough’ condition on the accused, only to get snubbed by their refusal again. 
 

Also in the army convoy attack case, the police have been too liberal with the accused, as they have charged only with four sections namely 147 (Punishment for rioting), 148 (Rioting armed with deadly weapon, 294 b (Using obscene language) and 324 (causing grievous hurt). In fact they could have added other sections of the IPC such as 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object), 150 (Hiring, or conniving at hiring, of persons to join unlawful assembly), 151 (Knowingly joining or continuing in assembly of five or more persons after it has been commanded to disperse) and 152 (Assaulting or obstructing public servant when suppressing riot, etc). 
 

Here also, the bail condition seemed peculiar: the accused, who are hardcore anti-social and anti-national elements, have been asked to do ‘social service’ in an orphanage for three hours daily for a week! Fortunately in this case, the defense lawyer could not claim ‘fundamental rights to freedom of expression’ and cite any previous precedence, and the Honourable High Court was saved from giving a lecture on ‘fundamental duties,’ 
 

Conclusion
 

The ‘Flag Code of India’ says, “The Indian National Flag represents the hopes and aspirations of the people of India. It is the symbol of our national pride. Over the last five decades, several people including members of armed forces have ungrudgingly laid down their lives to keep the tricolour flying in its full glory”. 
 

Describing the significance of the colours and the chakra in the National Flag in the Constituent Assembly, Dr. S. Radhakrishnan explained, “Bhagwa or the saffron colour denotes renunciation of disinterestedness. Our leaders must be indifferent to material gains and dedicate themselves to their work. The white in the centre is light, the path of truth to guide our conduct. The green shows our relation to soil, our relation to the plant life here on which all other life depends. The Ashoka Wheel in the center of the white is the wheel of the law of Dharma. Truth or Satya, Dharma or Virtue ought to be the controlling principles of those who work under this flag. Again, the wheel denotes motion. There is death in stagnation. There is life in movement. India should no more resist change, it must move and go forward. The wheel represents the dynamism of a peaceful change.” 
 

The loophole in the Prevention of Insults to National Honour Act 1971 is that the offences are not non-bailable. Considering the sanctity and significance of National Honour, it would have been more appropriate if the offences were made non-bailable. Also, it would have been wise on the part of the Madras High Court to demand an amendment to that effect. 

 
Insults to national honour must be termed as non-bailable offences and punishments made more stringent. Would expecting this from a nation which sanctioned a separate Constitution and Flag to one State be too much? 
 

Mera Bharat Mahan! Jai hind! Vande Mataram! 

The author is a senior journalist; he lives in Chennai