The Supreme Court bench of Chief Justice Dipak Misra, Justice DY Chandrachud and Justice AM Khanwilkar on Tuesday, replacing the word “shall” with “may” in direction (d) in the order issued by it on November 30, 2016, ruled that the playing of the national anthem by movie halls shall be deemed to be directory and not mandatory.
However, the bench clarified that should a cinema hall choose to play the national anthem, it shall be compulsory for every person in the audience to stand in respect thereof, unless they are entitled to exemption on account of disability as observed by the order dated April 18, 2017.
The order was passed in the light of the affidavit filed on behalf of the Ministry of Home Affairs on Monday urging for the restoration of status quo ante so far as the court’s earlier order dated November 30, 2016 is concerned, whereby the bench had made it compulsory for all cinema halls to play the national anthem before the commencement of a film and for the audiences to stand in respect thereof.
Subsequently, the direction had been relaxed in favour of certain categories of disabled persons.
Thereafter, last year on October 23, the bench had deemed it appropriate to allow the government to take a call with regard to requirement of playing the national anthem in movie theaters and bring out the requisite circular, notification or rules. The bench had also clarified that in exercising its discretion, the government shall not be influenced by the interim order dated November 30, 2016, of the court.
As opposed to its latest stance, the Centre had on October 23, 2017, insisted that national anthem be compulsory played in movie halls so as to instill a sense of patriotism and nationalism among the persons in the audience, which it had regarded necessary in view of the vast cultural diversity in the country. The Centre had relied on the fundamental duty in Article 51A(a) in that behalf.
By the affidavit filed on Monday, the Union of India conveyed that since the framing of guidelines governing the circumstances and occasions on which the National Anthem may be lawfully played or sung and the proper decorum to be maintained on such occasions requires the consultation with several ministries and departments, an inter-ministerial committee, comprising of representatives of inter alia the Home Ministry, Ministries of External Affairs, Information and Broadcasting, Defence, Culture and of Parliamentary Affairs, and the departments of Legal Affairs and of Empowerment of Persons with Disabilities, was constituted on December 5, 2017. The committee shall submit its recommendations on the matter in issue within 6 months of its constitution. The affidavit suggested that the apex court may consider the restoration of the position as it stood prior to its order dated November 30, 2016, in so far as the interim order mandates the playing of the national anthem in film theatres.
On Tuesday, the hearing commenced with the Attorney General KK Venugopal urging before the bench, “It is suggested on behalf of the Centre that either an order for status quo ante may be passed, restoring the position as existed before the November 30, 2016 order, or the term “shall” may be replaced by “may”, until the Committee decides the issue finally.”
Advocate Abhinav Srivastava, appearing on behalf of the present petitioner, submitted, “I wish to draw the attention of the bench to the lacunae in the Prevention of Insults to National Honour Act of 1971. While Section 2 thereof provides an expansive definition of what constitutes the respect or disrespect of the national flag and the Constitution, section 3 dealing with national anthem merely penalises the act of stopping one from singing the national anthem. While it is expressly provided that the tearing of the Constitution or the mutilation of the flag shall tantamount to disrespect, no clarification has been provided as to what constitutes disrespect of the national anthem. There have been instances where even national dignitaries have remained seated during the playing of the national anthem and where the anthem has been printed on plates meant to serve food. This is because there is no clarity as to whether or not a particular act amounts to disrespect of the national anthem”.
Referring to the ‘Orders Relating to the National Anthem of India’ as issued by the Home Ministry, the counsel remarked, “The orders provide that there cannot be any exhaustive list of occasions for the singing of the national anthem. Also, mass singing along with the national anthem is allowed so long as done with due respect. Schools have been required to ensure that the national anthem is sung at the beginning of each day and also incorporate the same in all programmes. The orders also mandate that everyone should stand in attention when the anthem is playing, except when played as part of a feature film. These executive orders have been in existence since 2012 and were reiterated in 2016, but lack proper implementation as they do not have the force of law.”
Finally, Srivastava referred to the Preamble of the Constitution, in so far as it provides for promotion of “fraternity assuring the dignity of the individual and the unity and integrity of the nation”, submitting, “The fundamental duties have never been interpreted to encompass the concept of ‘fraternity’ and ‘unity and dignity of the nation’. The national anthem is a tool for the integration of India, regardless of the many castes and religions. I suggest a 2-pronged strategy that maybe adopted in connection with the national anthem - promotion of the national anthem, and prevention of its disrespect.”
In response, the AG contended, “so far as the disrespect of the national anthem is concerned, the same has to be decided on a case-to-case basis. Like in the instance where the complaint against Infosys founder NR Narayana Murthy for insulting the national anthem by playing the instrumental version was quashed. Also, there was a case against MP Shashi Tharoor alleging that he had disrupted the singing of the National Anthem at a public function asking the audience to place their hand over their heart instead of standing in the attention posture and that case was also subsequently withdrawn. However, the Committee shall, in addition to laying down the Guidelines, also suggest changes in the Act of 1951 and measures for the implementation of the executive orders. The Court could also please permit Mr Abhinav Srivastava to make his representations before the Committee”.
Amicus curiae Sidharth Luthra then said, “Section 2 of the Act of 1971, that describes instances of disrespect, is limited in its application to the Constitution and the national flag. Section 3, which deals with the national anthem, is restricted to intentionally preventing the singing of the anthem or causing disorder during the singing. How is disrespect to be construed in relation to the anthem- solely on the basis of the guidelines of the Committee or could the bench also lay down specifications? An explanation is needed as section 3 imposes penalty for any act amounting to disrespect of the anthem.”
Amicus Luthra also submitted, “Article 51A was inserted in the Constitution by the Amendment of 2002, that is, when the Act of 1971 was already in force. Therefore, the former, should be interpreted in the perspective of the latter. Also, the words ‘of the Constitution or any part thereof’ in section 2 of the Act need to be read in consonance with clause (a) of Article 51A, which provides for abidance by the Constitution and respect for the National Flag and the National Anthem. Further, the words ‘or otherwise shows disrespect’ as inserted in section 2 by the 2003 amendment need to be accorded a definite interpretation to prevent misuse.”
Senior counsel CU Singh, appearing for the Kodungallur Film Society, aggressively opposed the submissions of the petitioners, stating, “For seeking a change of the Act of 1971, the Supreme Court is not the right forum. It is the Parliament before which such representations should be made, considering that in the present matter, no challenge to the Act of 1971 has been preferred. In several cases like the Vishaka judgment, the apex court has deemed it fit to fill the vacuum in the law by laying down guidelines in compliance with international treaties, pending the enactment of a law. But in the present case, the law exists; the Parliament has dealt with the national anthem in section 3 and the national flag in the section 2- in the latter, there is no mention of the National Anthem and hence, no ambiguity. It is not an appropriate case for the Court to interfere as it shall tantamount to overreaching of its powers by the court.”
Senior counsel Rajeev Dhavan, making an intervention in person, expressed his agreement with the stance of the Centre for recall of the interim order dated November 30, 2016. Further, he submitted, “There are two aspects which I wish to deal with- one, the interpretation of the Act of 1971, in so far as what amounts to disrespect of the national anthem. I agree with the AG that the same can only be decided on a case to case basis by the Court. The second is the promotional aspect of the national anthem, where the court has gone a step further in requiring the anthem to be played in cinema halls. The national anthem has a sacral element, a ceremonial significance, which must not be trivialised by playing it in every cinema hall four times in a day.”
Senior Advocate Sajan Poovaya appearing for BJP Leader Ashwini Upadhyay argued that the Constituent Assembly unanimously adopted the resolution to give equal status to Jana Gana Mana and Vandematram therefore it is duty of the Government to consider the resolution while framing policy on national anthem.
Poovayya also drew the attention of the bench to judgment of the Supreme Court in UoI v Navin Jindal , in so far as it was observed therein, “National anthem, national flag and national song are secular symbols of the nationhood. They represent the supreme collective expression of commitment and loyalty to the nation as well as patriotism for the country”.
Advocate P V Dinesh, appearing for Kodungallor Film Society, which filed the application to recall the original order, requested the court to confine the order to national anthem and not to national song. It was further submitted that national song is a larger issue and Union of India cannot be the sole custodian of secularism, there should be larger hearing with participation by all the states. He further made a request that in case the court continuing with interim order, during film festivals the audience be required to stand up only once as there will be 5-6 screening in a day itself..
Advocate Sanjeev Bhatnagar also pressed the recommendation for the recall of the interim order dated November 30, 2016, submitting that the national anthem symbolises nationalism and patriotism and the correct place for playing it would not be the cinema halls, but schools. Citing the examples of the USA and Russia which have 4 and 2 national anthems, respectively, the advocate also stresses on the Indian national song to be accorded equal significance as the national anthem.
Advocate Nanita Sharma drew the attention of the bench to the representations in connection to the prevention of disrespect of the national anthem made before the Union of India, which have remained undecided since 2014.
Advocate VK Biju, appearing for another intervenor also supported the petitioner and argued for the continuation of the order
The bench, on Tuesday, observed that a perusal of Section 3 of the Act of 1971 makes it crystal clear that no one can intentionally prevent the singing of the national anthem or cause disorder during its singing in view of the penal provision in the Section.
Relying on clauses III, IV and V of the ‘Orders Relating to the National Anthem of India’, the bench remarked that three things emerge obviously - one, the national anthem is bound to be respected; two, proper decorum is to be maintained when it is being played or sung; and three, there is no exhaustive list of occasions when it may be sung so long as it is in salutation to the motherland.
Disposing of the petition, the bench directed that the committee shall comprehensively look into all aspects in making its recommendations. The bench also required advocates Sanjeev Bhatnagar and Maneeta Sharma to make their representations before the committee, besides advocate Abhinav Srivastava, but expressly limited the scope of representations to the national anthem.
Replacing the word “shall” with “may” in direction (d) of its order dated November 30, 2016, the bench observed that the playing of the national anthem by film theatres shall be directory until a final decision in this regard is taken by the committee.
Finally, the bench remarked that all citizens of India and all persons representing India are duty bound to show the utmost respect to the national anthem.