The Supreme Court of India ordered on 30th November that the national anthem should be sung or played in cinema halls across the country before the beginning of a feature film. The Supreme Court said that there must be National Flag on the screen when the National anthem is played.
The Supreme Court order also clarified the protocols to be followed when the national anthem is played or sung in cinema halls. This order was passed on a writ petition filed under Article 32 of the Constitution.
The petition was filed by Shyam Narayan Chouksey who is a retired engineer from Bhopal. Chouksey filed a petition in the Madhya Pradesh High Court alleging producer-director Karan Johar of insulting the national anthem in his movie ‘Kabhi Khushi Kabhi Gham’. Chouksey alleged that a scene in the movie showed the national anthem in poor light.
Further, he argued that the people in the cinema hall did not stand when the anthem was played. The Court had ordered that the movie shall be withdrawn from all theaters and could not be shown unless the producer removed the scene showing the national anthem in contrary to the national ethos and an anathema to the sanguinity of the national feeling. This order was abrogated by the Supreme Court in 2004.
Afterward, on a review petition filed by Chouksey, the Supreme Court recalled its 2004 order and agreed to reconsider various questions of law entailed in this matter.
The main argument of the petition was that sometimes the National anthem is sung in diverse circumstances which are not permissible and can never be countenanced in law. The Supreme Court considered petitioner’s argument that it is the duty of every person to show respect when the National anthem is played or recited or sung.
However, the order has prompted a debate among the intelligentsia and law experts of the country. There is also a lot of confusion over the implications and content of the order.
What the Court actually said?
We have tried to explain the order by dividing it into five points which would be helpful to have clarity over this whole order. The order says:
1) Before the National anthem is played or sung in the cinema halls on the screen, the entry and exit doors shall remain closed, so that no one can cause any kind of disturbance which will consist of disrespect to the National anthem. The door can be opened after the National anthem is played or sung.
2) National anthem or any part of it shall not be printed on any object and also never be presented in such a manner at such places which may be contemptible to its status and tantamount to disrespect. It is because when the National anthem is sung, the belief of protocol associated with it has its inherent roots in National integrity, National identity and Constitutional Patriotism.
3) No commercial exploitation of the national anthem shall be allowed to give a financial advantage or any kind of benefit. To explain, the National anthem should not be utilized by which the person encompassed with it either directly or indirectly shall have any commercial benefit or any other benefit.
4) No dramatization of the National anthem shall be permitted and it should not be entailed as a part of any variety show. It is because when the National anthem is sung or played, it is essential for everyone present to show due respect and honor. To think of a dramatized exhibition of the National anthem is absolutely implausible.
5) All the cinema halls in India shall play the National anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National anthem.
History of Such Orders:
As we know, the national anthem was written by India’s first Nobel laureate Rabindranath Tagore in 1911. It’s first of five stanzas were adopted as the country’s national anthem in 1950. The last order of the Supreme Court came after the China war in 1962, which stated that the national anthem shall be played in cinemas. This practice was discontinued in 1975 because most movie goers ignored it.
In a recent order, the Bench said it is the duty of every person to show respect when the national anthem is played or sung under the Prevention of Insults to National Honour Act of 1971. In India, existing laws don’t penalize or mandate any person to stand up or sing the national anthem.
According to the Prevention of Insults to National Honour Act, 1971 whoever deliberately stops the singing of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.
The most famous case related to the national anthem which caught the attention of general public. It was the case of punishing someone for not singing the national anthem. And the punished were three children from Kerala. The school students were expelled for not singing the national anthem, although they remained standing in 1986. At that time, the Supreme Court had observed that there is no provision of law which obliges anyone to sing the National anthem nor it is disrespectful to the National anthem, if a person who stands up respectfully when the National anthem is sung does not join the singing.
The Maharashtra Assembly issued an order mandating the playing of the national anthem before the start of a movie in 2003. In 2015, A Home Ministry order stated that whenever the Anthem is sung or played, the audience is required to stand to attention. And in case, when anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and could create disorder and confusion rather than add to the dignity of the Anthem.
The Constitutional validity of order
As we know that this order was passed by a division bench of Justice Dipak Misra and Justice Amitava Roy on a writ petition filed under Article 32 of the Constitution. The directions are issued on the basis of love and respect for the motherland. It was stated by the court that love and respect get reflected when one shows respect to the national anthem as well as to the National Flag. Apart from this, it would also inculcate a sense of committed patriotism and nationalism.
In this regard, clause (a) of Article 51(A), Fundamental Duties occurring in Part IVA of the Constitution can be taken as a reference. Article 51A, states that it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National anthem, and the National Flag.
As mentioned in the constitution, it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. One of such ideal is to show respect for the National anthem and the National Flag.
Legal Experts Views on the order
There are mixed views on the order of Supreme Court about the national anthem. Many legal experts have argued that people should not be forced to stand for the national anthem in cinema halls. Some have mentioned that it would be eccentric for people to stand for the national anthem before the start of say an adult or x-rated film. Many legal experts say that feeling of love and respect for the country should come to a citizen from within and something as sacrosanct as the National anthem should be played or sung only on special occasions.
There have been other mixed reactions from legal experts. A few termed it as “judiciary’s over-enthusiasm” and others said playing the national anthem and respecting it won’t cause any harm. Former Attorney General and noted lawyer Soli Sorabjee commented courts cannot direct the public to stand up and do anything. Many other senior advocates were of the view that this order could lead to problems like law-and-order as it would be difficult for cinema hall owners to make people stand especially elderly viewers and children or those who are physically challenged. It was believed by many that the Supreme Court can give directions to the executive government to amend the acts. But it can’t give directions by themselves to stand up, to do this, do that. Some experts also mentioned that the court just dictated the law which is mentioned in the Prevention of Insults to National Honor Act.
Laws of other countries on the national anthem and flag
The confusions caused by this order of the apex court can be sorted by considering similar case law from other countries, and it'll give us the comparative analysis of this order.
The Supreme Court of the United States struck down a law prohibiting the desecration of certain venerated objects, including state and national flags in a 1989 United States case, Texas Vs Johnson. It prohibited the state from punishing or criminalizing any action that did not satisfy the majoritarian concept of either allegiance to the state or respecting national honor.
The court maintained that these acts were protected by the First Amendment, which protects the freedom of speech of the citizens. American law does not mention a “reasonable restrictions” clause on these freedoms, as Indian law does. In the US, the law says that whenever the national anthem is being played, all individuals should stand at attention with the right hand over their hearts. In that case, when the National Flag is not available at the occasion, they should face the source of the National anthem. But the country does not discipline people for not following this.
Italians are not publically strict on their National anthem as it is not played in any public places except during formal state ceremonies, sporting events, and at public rallies attended by the President. Neither they have to sing along nor is mandated to behave in any particular way. They are only required, however, to stand and show respect to any national anthem.
In Mexico, the country’s Law of the Coat of Arms, National anthem and Flag makes it mandatory for all schools and universities to honor the flag on Monday mornings. The beginning and end of school terms involve a pledge and the National anthem. Apart from it, many schools in the country also expect children to wear a different uniform on Monday, generally all white, out of respect for the anthem and flag.
The Japanese passed a law which officially established their national flag and anthem in 1999. The Act on National Flag and Anthem made no provisions for treatment or usage. Local area representatives are free to make their own regulations. This may be a result of the country being uncomfortable with apparent displays of nationalism since World War II.
Thailand has gone further than the Mexicans. Thailand plays the national anthem every day on television at 8 am and 6 pm. Students are all required to assemble in front of the National Flag at 8 am and sing the national anthem. The national anthem is also played in government offices and movie theaters regularly. But all this is an unofficial convention. The country does not have an official law regarding its National anthem.