In the end, Justice D.Y.Chandrachud prevailed over the Chief Justice, Dipak Misra. But only partly. As the National Anthem case came up for hearing before the three-Judge bench of the Chief Justice, and Justices D.Y.Chandrachud and A.M.Khanwilkar, differences between the Chief Justice, Dipak Misra and Justice Chandrachud came out into the open on the relevance of the Court’s interim order, requiring cinema goers to stand up in the beginning of the show, during the playing of the national anthem.
Chief Justice Dipak Misra was the author of the Interim Order of November 30, 2016, which made it mandatory for all cinema-goers to stand and show respect to the compulsory playing of national anthem at the beginning of each show. Justice Chandrachud, showed his discomfort with the interim order, and began to quiz the Attorney General, K.K.Venugopal, on why the Government expects the Court to intervene in the matter. Chief Justice Dipak Misra, whose views on the issue were already known, chose to remain silent, chuckling once in a while, when Justice Chandrachud went on.
But the differences appeared to have been sorted out between them, when the bench dictated an unanimous order, asking the Central Government to “take a call” on regulating the playing of national anthem, “uninfluenced by the Court’s interim order of November 30, 2016”.
The hearing of the case on Monday began with the AG explaining the rationale of the November 30, 2016 order. He added, however, that the order has led to certain hiccups, with pleas from certain quarters for its recall.
Senior counsel, C.U.Singh, who sought the recall of the interim order, told the bench that the petitioner, Shyam Narayan Chouksey, has no lis at all. “A statutory regime is already there since 2004 regulating the playing of national anthem, and it is continuing. The petitioner does not challenge this regime. Therefore, should the SC exercise its inherent power and issue an interim order?”, he asked the bench.
The AG, in his response, defended the Interim Order, saying standing up during the national anthem acts as a unifying force, as India is full of diversities, marked by religion, caste, language, region, etc. “No citizen can possibly object to this order”, he said.
C.U.Singh responded to this saying he is not opposed to the playing of national anthem per se. “Parliament had already enacted a law , laying down guidelines since 2003, and updated them in 2005. Therefore, there is no issue on standing up when national anthem is played. But the order says “shall be played” before the beginning of every film show. The petitioner is saying he wants more than what the Parliament had already enacted. This is a plea for judicial legislation”, C.U.Singh summed up.
When the Chief Justice referred to the argument asking why only cinema halls were chosen for the compulsory playing of national anthem, the petitioner’s senior counsel, Rakesh Dwivedi, responded saying that the State should step in actively, and make it mandatory in private schools and colleges also. He referred to Article 51A(a) which says that it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem, and said that the National Flag and the National Anthem are put on identical pedestal.
Dwivedi then referred to Section 3 of the Prevention of Insults to National Honour Act, 1971, which says that whoever intentionally prevents the singing of the Indian National Anthem 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.
C.U.Singh responded saying that he is not challenging Section 3.
It was at this point, Justice Chandrachud intervened, and asked the AG why we should insist on showing patriotism, when people go to cinema halls for undiluted entertainment. Justice Chandrachud suggested that it may be better for the Government to amend the Act and the Rules, rather than throw the burden of doing so , on the Court.
Justice Chandrachud asked: “Tomorrow, there may be a demand to stop people from wearing shorts and T-shirts while going to cinema halls, because national anthem is being played. Where is the end for such moral policing?”
Justice Chandrachud added: “Why should we assume that if you don’t stand during the playing of national anthem, you cease to be patriots?”
Dwivedi suggested that the Court could ask the Government to decide how it wants to implement Article 51A(a).
When C.U.Singh asked where do we draw the line, if someone says national anthem should also be played at railway platforms, where people gather, the Chief Justice intervened and asked him not to stretch the argument. “People don’t congregate at railway platforms”, he said.
When the Chief Justice expressed his inclination to modify the interim order, by replacing the word “shall” with “may”, the AG suggested that the Government could be asked to decide one way or the other. “They may or may not bring the necessary notification or circular”, he told the bench. He suggested that the words “the Government may take a call” would mean that it is bound to bring the necessary regulation.
Dwivedi suggested that the interim order could continue for two more months, to enable the Government to do the needful in the mean time.