Quis custodiet ipsos custodes, is a very often heard line whose validity
must not be lost as passé. For, the relevance of the cited maxim comes often
into play. Recently Hon'ble Supreme Court in
Shyam Narayan Chouksey v.
that the National Anthem must be played in cinema halls before screening of the
movies, and any disrespect to it, is Anti-National activity. And that during the
time National Anthem is played the entry and exit doors is to be closed!
The court also directed that no commercial exploitation of the national anthem
should be done. The court in its order observed that no dramatization of
national anthem is warranted and also it should not be included in any variety
show. To think of dramatized exhibition of the national anthem is, the court
said, inconceivable. The court believes that in scrupulously following the said
directives, it would show love and respect for Motherland, and also it will
instill nationalistic and patriotic feeling in the people.
Banning National Anthem in movies
The petition was filed as 'citizen standing'[iii] in which it was
averred that necessary respect must be shown to the national anthem. Hon'ble Mr.
Justice Dipak Mishra, who heard the present petitioner, was also the judge in
previous case instituted before the Hon'ble High Court of Madhya Pradesh by the
same petitioner in matter relating to movie 'KABHI KHUSI KABHI GUM'.[iv]
Although in the order Mr. Justice does not rely on that case nevertheless the
petitioner had better chances as in the aforementioned case also the judge was
against commercialization of the national anthem. But what is interesting is
that in the order the court did not feel necessary to give legal reasoning,
apart from relying on 'Fundamental Duties' which is not enforceable, but also
directed an interim measure which is to be 'Scrupulously followed'.
Some observations of the learned judges is too wide. For instance the court
'The National Anthem should not be used by a person involved in any commercial
benefit or any other benefit.'
Should the playing of national anthem in commercial movies necessarily mean that
the national anthem is being disrespected? Does not the movies introduce a
patriotic feeling among the people? To illustrate, the last part of movie 'Dangal',
wherein the national anthem tune is played in background after a protagonist
wins a medal, does it not show a sense of pride?
To some audience, the movies may inculcate, educate and pump more nationalistic
feeling, thereby securing proper respect towards the national anthem, more than
merely singing or standing to the tune without any sense of duty. Moreover the
fundamental duties shower the Citizens with said obligations, but it is not for
the foreigners. But the movies can help educate the foreigners about the
national anthem to which they are ignorant, and thereby acts as an instruction
as to the responsibility of every person to respect the symbolic identity of a
nation that they visit to.
Movies act as catalyst against corruptions, nepotism, rowdies etc. It is a
source of entertainment and a place for fantasies. Moreover it was held in Karan
Johar case [v] that when a national anthem is played in middle of the film, one
need not stand up, else the same causes confusion among people. It is therefore
submitted that in-toto banning of the national anthem in any commercial movies,
which is not in any manner derogatory or disrespectful is not warranted.
Enthusiastic Legislative Court
The court does have power to make laws under Art. 142 for doing complete justice
to a cause pending before it. And the manpower to enforce it, is provided by
Art. 144 which directs all authorities, civil and judicial, to act in aid of SC.
But this power of making laws is a very limited power. Ordinarily the rule is
that the court should not resort to making laws, but rely on statutory
provision, despite this fact the court decided to pass an interim order.
The government was only too happy to escape the criticism of having extra
adrenaline of jingoistic patriotism which often they are charged of, and this
was evident from the fact that the attorney general readily agreed to such order
and made no resort to convey the message that law making was within the domain
of the legislative bodies. Moreover the court knew its order in form of enacting
a law, would be vague, as stated before, as it is not through proper channel,
without proper discourse or debate and on the whim of what a limited numbers of
judge conceives to be the standard expected of people.
On the other hand the legislature has to go through lengthy process of bills,
arguments, passage of bills, then passing to another house where again the
debate, discussion, amendments etc. are made and even thereafter the law has to
get the sanction of the president. Therefore a lot of discourse takes place
before a law is enacted. Therefore a capricious law can be curtailed by the
members of house coming from diverse sections of the society.
The court which jealously holds its Jurisdictional ground from the encroachment
of Executive and Legislature, shown such as by NJAC case, should not have
directed the interim order which was nothing of immediate urgency and especially
when the court knows it's not within their domain to make laws. Moreover it was
also within the 'judicial notice'[vi] of the court that such a law had been
passed, wherein the national anthem was played after the end of the movie, but
since people would just leave at the end of the movie, the rule was abandoned.
The existing laws do not penalize or force any person to stand up. But it does
state that a person ought to show respect and not bring it into contempt whether
by words or act.'Prevention of insults to National Honour Act, 1971'provides
'Prevention of singing of Indian National Anthem, etc.—Whoever
intentionally prevents the singing of the Indian National Anthem or causes
disturbance 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.'[vii]
The respect for the national anthem, as interpreted by
Emmanuel case [viii], held that it could be shown by standing erect in respectful
manner, even without singing. Thus the court whilst accepting that singing was
not cardinal rule of showing respect it declined to give unqualified rights to
the members of Jehovah's Witnesses against the National Anthem which would
otherwise endanger the security of the Nation. The court stated that an
unqualified discretion would will develop, among the citizens a tendency to
ignore the mandates of the Constitution.
Now with the order being passed by Hon'ble Supreme Court, a rule has thus been
laid down. Nevertheless, it is not clear as to the penalties for the violation
of the same. The overenthusiastic court could but not lay any proper law, for it
has got no legislative mechanism of its own. If any, presumably with the help of
amicus curie, the benefit was not taken. Therefore a law without any proper
mechanism has been passed. There is no answer in that 'Order' as to what would
happen to wheelchair bound person? [ix] Would he too get beaten up by a vigilante
who is not so sanctioned for doing public duty? What is punishment for that
unauthorized vigilante? And such other questions as to non-closing of the exit
and entry doors[x] etc. though it might seem trifle, but remains unanswered.
The blindfold on the eyes of the 'lady justice' denotes that whosoever comes
before her, is equal before the eyes of law, though they might be of unequal
status in life. It also signifies that the judge is blind to his personal
feelings or outlook towards any particular thing. It is important to note that,
what he might think or feel is right, might just turn out to be wrong for the
others. Hence the judge should shy away from legislating a law unless it is
called to do complete justice, where otherwise the result would be miscarriage
of justice. Therefore it is submitted that legislation should have been best
left to legislative body to legislate with proper perusal rather than to usurp
Before this decision of the court there was no binding rule of playing of the
national anthem before the beginning of the movie. Now the order of the court
relies exclusively on Fundamental Duties and compels a person to stand.
One has to remember that the Fundamental Duties were made non-enforceable,
because they are supposed to be moral duties and ordinarily the moral duties are
not enforceable unless backed by a law. Fundamental Duties are more like a
reminder of the rich heritage, culture, traditions and values of freedom
struggle. Legislature leaves it to the good sense of judgement of the people to
not to indulge in indiscriminate acts against such duties and did not resort to
any sanction as such.
Other reasons for making it non enforceable could be possibly due to majority of
Indians being uneducated even in late 1970s, when the Art. 51A was enshrined to
Constitution by 42ndamendment, and more so because, a sense of respect for
national identity must not come from the compulsion, but from a sense of duty
from within a persons' feelings. Compelling a person to stand does not implant a
patriotic feeling in a person.
Anthem being made compulsory to be played in movie theatre is one
thing and the duty of every citizens to respect it is quite another. Even
without the 'Judicial Order', the respect for the national identities such
National Flag, National Anthem, Constitution should remain intact. No one should
show contempt nor place any indiscriminate disregard for the same.
The court also has a share of duty that it should not encroach upon
others domain, notwithstanding the fact that the executive or for that matter
the legislature was not averse to its legislating on such particular subject. It
gets necessary to repeat so, because what is done once may be repeated again.
This lays ground for discord between the three bodies of the State.
[i] Who will watch the watchman?
[ii] Writ petition (civil) No. 855/2016.
[iii] A concept of PIL, where the petitioner litigates in the interest of the
whole citizens rather than merely for some limited victims.
[iv] AIR 2003 MP 233
[v] AIR 2003 MP 233
[vi] Sec. 15 Indian Evidence Act 1872.
[vii] Sec. 3
[viii] AIR 1986 Ker 32
[ix] An 'Executive Order' was passed on later date which required that the
wheelchair bound persons need not stand up.
[x] Order is contrary to 'Uphar Fire Tragedy' case where it was held that the
exits doors can't be closed.