Legal Journey Of National Anthem And The Spectacles Of ‘Constitutional Patriotism’
“A judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see” so said Justice Dipak Misra while speaking for the Supreme Court, when it set aside an Allahabad High Court ‘interim order’ which issued ‘sweeping’ directions to reform police investigation mechanism in the state.
This was by the bench comprising Justice Dipak Misra and Justice Amitava Roy on 29th of November. The very next day, i.e. on 30th November, the very same bench, in a writ petition, made it mandatory for all cinema halls to play the national anthem before a movie begins.
I did some research to find out the existence of any rules or regulations, making it mandatory to play the national anthem as the court directed, but could not find anything legally binding except a ‘practice’ followed by some theatres.
A movie theatre is essentially a place for entertainment and it is a hall for everyone, a mixed bag. It satisfies the artistic thirst of a movie goer and also his/her sexual fantasies. It shows movies which make people patriotic without the aid of any symbol of ‘constitutional patriotism’ and equally screens sleaze and sex. National anthem followed by scene of sex and vulgarity, does it pump up your feel of patriotism? I really doubt. Of course, people in obedience of the court order, shall stand up as the court can control the physical movements of the citizen and not what is passing through their mind. A compelled 'stand up in attention' of seeker of an adult content who is eagerly waiting for what he 'paid for' works as an insult to the national anthem rather its honour.
The national anthem order also reveals a gross judicial inconsistency followed by the same bench. A day before passing the national anthem directives to Union and State Governments for its strict compliance, the same bench had reminded Allahabad High Court not to enter into the domain of Executive and Legislature. The uncomfortable question is whether an exemption is carved out for the Supreme Court to enter into the domain of Executive and Legislature.
Justice Dipak Misra himself answers this question in Suresh Chand Gautam vs. State of Uttar Pradesh. While denying to issue a mandamus to the state for framing of a rule or a regulation for the purpose of reservation for Scheduled Castes and Scheduled Tribes in matter of promotions, the judge said: “It neither legislates nor does it issue a mandamus to legislate".
The judgment read further: “Be it clearly stated, the Courts do not formulate any policy, remains away from making anything that would amount to legislation, rules and regulation or policy relating to reservation.”
The national anthem finds its place under 'fundamental duties' in the Constitution. Fundamental duties are not enforceable like fundamental rights, hence no writs are issued by the constitutional courts. In this context, the observations of the Supreme Court qua national anthem in Bijoe Emmanual, are notable. The court said, “It is true Article 51A (a) of the Constitution enjoins a duty on every citizen of India "to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing.”
National Anthem Litigations
Bijoe Emmanual case (1986)
The facts in Bijoe Emmanual case was that in a school, while the national anthem was being played, some children belonging to a certain religious order, refused to sing it and the apex court finally held that they have the right not to sing the anthem and that would not amount to disrespect. Here, the theatres are being mandated to play the national anthem, if the legal logic in Bijoe Emmanuel is stretched, can it be safely said that if theatres do not play the national anthem, it would amount to disrespect? Contempt of court is another issue, although.
Justice Ranganath Mishra case (2003)
It is a judicial coincidence that Justice Dipak Misra’s uncle, who was also the former Chief Justice of India, Justice Ranganath Mishra had written a letter requesting the Supreme Court to issue necessary directions to the state to educate its citizens in the matter of fundamental rights. The court, on his request, referred the matter to a 5-judge bench as correctness of Bijoe Emmanuel v State of Kerala was doubted, which was returned to a 3-judge bench. Finally, the Supreme Court directed the Central government to look into the recommendations made by the Justice Verma committee.
Shyam Narayan Chouksey case (MP HC-2003)
Justice Dipak Misra has the rare opportunity of hearing more or less same case by same petitioner while as a judge in the High Court and Judge in the Supreme Court. While he was a judge of the Madhya Pradesh High Court, Justice Dipak Misra had authored a judgment with Justice AK Srivastava on a PIL filed by the same petitioner Shyam Narayan Chouksey on the same issue of demanding due respect to the national anthem. In the said judgment, Justice Dipak Misra observed: “Corrosive attitude in regard to honour of the national sentiment is totally impermissible. The dramatization of the national anthem is against the constitutional philosophy”. Similar sentiments were expressed in the present directions.
In the said judgment, Justice Misra observed: “Any person who shows disrespect to the national anthem in a way, has to be regarded involved in anti-national activity.” The judge further said every citizen should remember that every word, deed and thought by him has to be indicative of the respect for the Constitution and the national anthem and that no one is permitted to pave the path of deviancy and introduce the theory totalistic individualism in the name of freedom of expression.
Karan Johar case (2004)
Karan Johar assailed the above judgment before the Supreme Court where a three-judge bench, recording the submissions made by the government, observed: “We are satisfied that in view of the instructions issued by the Government of India that the national anthem which is exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is not expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the national anthem.”
The apex court held that requiring the audience to stand up would create disorder and confusion, rather than add to the dignity of the national anthem. The Madhya Pradesh High Court judgment was set aside. Later in 2006, on Chouksey’s review petition, the bench left the question of law open to be considered in another case.
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