Legal Analysis of the ‘National Anthem Order’ by the Supreme Court.

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The Hon’ble Supreme Court in Shyam Narain Chouksey v. Union of India (Writ Petition – Civil No. 855/2016) issues a series of directions concerning compulsory playing of National Anthem in Cinema Halls, standing up while the National Anthem is playing and a prohibition on dramatization of the National Anthem. This short post is an attempt to test the said order purely on the anvil of legality and constitutionality.

At the very outset, in order to set the context right, a discussion of the various legal provisions/rules relating to National Anthem may be set out briefly : 

  1. There is absolutely no prohibition on the National Anthem being made a part of a movie or a documentary. Neither the Cinematograph Act(or the Rules made thereunder), nor The Prevention of Insults to National Honour Act, 1971 anywhere forbids such an exercise. This area of law being covered by specific legislation, it is not a case of legislative vacuum which could have been filled-in by judicial fiat.
  1. Parliament has not been unmindful of ‘National Honour’. The Prevention of Insults to National Honour Act was enacted in 1971. While S. 2 deals with insult to the Indian National Flag and the Constitution of India, S. 3 deals with the National Anthem and enacts

Section 3 : 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.

This is the only provision in the Act that relates to the singing of the National Anthem. It is clear from a bare perusal of the section that ‘intentionally preventing’ or ‘causing disturbance’ in the singing of the Indian National Anthem are the only two activities that are rendered culpable and prohibited. This is what the National Honour Act, 1971 states.

The Government of India, Ministry of home Affairs has also issued orders referring to the National Anthem of India. (http://mha.nic.in/sites/upload_files/mha/files/pdf/NationalAnthem(E).pdf)

Relevant Order is to be found in ‘Part V’ under the title ‘General’ and it reads :

  • Whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a newsreel or documentary the 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 would create disorder and confusion rather than add to the dignity of the Anthem.

This was followed by an advisory (No.15/3/2016-Public) by the MHA, dated 11th March, 2016 seeking compliance of the earlier directions, as reproduced above. To cut the long story short, there are : statutory provisions/orders guarding the respect and dignity of the National Anthem, firmly in place.

This is the law in this regard.

With this in mind, let us turn to each specific direction passed in the impugned order and test its legality:

  1. There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit”

Comment : 

If the National Anthem is a part of a ‘movie’ or ‘documentary’, in a specific context, and the usage of the National Anthem is consistent with its dignity (which has also obtained certification under the Cinematograph Act) would that still run foul of this direction, merely because it is a part of a commercial feature film or documentary ? What happens in case the National Anthem is a part of a government non profit documentary/programme, whether in that case the National Anthem can be used, and if yes, what will be the extent of permissible use ?

2. There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

3.National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.

Comment : 

Various questions arise in this regard : What is the meaning that is to be attributed to the word ‘Dramatization’? What would be the difference between the usage of National Anthem and dramatization ? Where does one draw the line ?

Oxford Dictionary defines ‘Dramatization’ means “A play or film adapted from a novel or depicting a particular incident”. ‘Dramatize’ is defined as “Adapt or present as a play or film”.

Now should the directions be construed to mean that all kinds of adaptations of the National Anthem are ruled out. Are all renditions also impermissible now, and ones already there – banned ?  Even if they are totally consistent with the dignity and respect to be shown to the National Anthem and have withstood certification.

We have already seen that neither the Cinematograph Act/Rules made therein, nor The Prevention of Insults to National Honour Act, 1971 anywhere forbids a ‘dramatization’, so to speak.

A reading of the impugned order suggests that all ‘dramatizations’ of the National Anthem are ruled out now and banned.

Article 19(1)(a) guarantees to all citizens the freedom of speech and expression. Article 19(2) allows speech to be restricted only by an existing law or a law made by the State. It does not contemplate restriction upon free speech through any other mechanism.

Article 13(3) of the Constitution defines “law” for the purposes of Part III as “any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law“, This definition, when read noscitur a sociis, seems not to include judicial orders.  Therefore, for the purposes of Part III, there can be no other definition of law, except as laid down above.

As to the rationale as to why speech and expression can be curtailed by a law and not by way of a judicial order, the answer is simple : legislation implies a democratic process, whereas judicial orders do not.

In the present case, since the restrictions have come in the form of a judicial order, the citizen has no remedy against the order since a writ cannot lie against the court for violation of fundamental rights (Naresh Mirajkar vs State of Maharashtra, 1966 SCR (3) 744 (9 judges bench). 

The impugned directions seem to be devoid of any statutory or Constitutional backing. There is no law which is being implemented, nor are any fundamental rights being violated in the absence of such a law.

Furthermore, what cannot be lost sight-of is that : the violation of the Court’s order may entail contempt proceedings against the contemnor. Since there are penal consequences (jail/fine, or both) attached to this, the court order has to be clear and unambiguous and lay down with precision, the exact conduct that is sought to be forbidden. As demonstrated, the import and meaning of the words ‘dramatization’ and ‘financial advantage’ is far from specific and may expose a filmmaker/theatre owner to liability, without setting out a clear code of conduct. A provision of penal nature ought to be specific. This renders the impugned directions  unsustainable as the same are ‘vague’ ‘omnibus’ ‘all-encompassing’ which makes serious in-roads into the ‘Freedom of Speech and Expression’ of a citizen. There are no manageable and objective standards on which liability of a citizen for violation of the court order can be adjudicated. There should be a clear line demarcating the allowed and the forbidden speech for the guidance of the citizens, film makers, theatre owners etc. When a judgment uses ‘vague expressions’ capable of misuse, abuse without providing notice to persons of common intelligence to guess their meaning, it leaves them in a boundless sea of uncertainty, conferring wide and unfettered power on a busybody to prosecute the citizen, filmmaker, theatre owner. Such an order and potential mischief will not qualify as ‘just, fair and reasonable’ procedure and fail the tests of due process, being arbitrary.

To buttress this point, reliance in this regard may be placed on : Shreya Singhal v. Union of India, (2015) 5 SCC 1

4. 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

Comment : 

The question that arises is whether the Court can, in absence of a law, compel the anthem’s screening in Cinema Halls ? What is the legal basis of such a direction ? And why just Cinema Halls. Is it not a violation of the freedom of speech and expression (which includes freedom not to speak) and constitutes a trespass into the freedom of trade, business and profession, which as discussed earlier, can be restricted by way of a ‘law’ and not a judicial fiat.

Can the theatre owners/movie makers allege violation of Article 14 on the ground of being singled out ? Would this be a reasonable classification ? Singling out theatres for playing of National Anthem, while leaving out other entertainment ventures such as plays/theatre/sports events/dance shows/rock concerts, out?  And if at all cinema is differently placed so as to warrant a different treatment, what is the nexus with the object sought to be achieved ?

Furthermore, the Supreme Court in E.P.Royappa v. State of Tamil Nadu (1974), and later in Ajay Hasia v. Khalid Mujib Sehravardi(1981) has  moved a step ahead from the doctrinaire tests of reasonable classification, and held that : over and above the tests of rational differentia to justify unequal treatments to inequals, the law would also have to satisfy the tests of non-arbitrariness, Natural Justice, Reasonableness and Fairness. This ensured that ‘classification’ is not the ‘be all and end all’ of right to equality and has widened the domain of judicial review.

As regards the duty to stand up ? Can we say Bijoe Emmanuel & Ors  v. State of Kerala : 1987 AIR 748 really imposed that duty ? We may argue that it does not. Since we have seen S. 3 of the Prevention of Insults to National Honour Act, 1971 only penalises ‘wilful prevention’ ‘causing disturbance’ during the singing of the National Anthem.

Now, Whether sitting peacefully while the National Anthem is being sung/played amount to disturbance or prevention? We may argue that it does not.

Every judgment has to be read secundum subjectum materiam, that is to say, in context of its peculiar facts. In Bijoe Emmanuel (supra) the court was concerned with a School Assembly, where not standing may have caused disruption and there is a general duty to stand.

As opposed to this, the present case concerns Cinema halls where there is no essential duty to stand; Infact, the narrow aisle between seats are not conducive to standing either.  This can be fortified by the MHA order which affirms that standing in the movie might cause disturbance, rather than adding to the dignity or solemnity of the anthem.

Besides this, it is a well established rule that penal statutes have to be construed strictly; According to the principle of lenity, any ambiguity (if there is any) is always to be resolved in favour of the defendant. Now the question that arises is : Whether the SC could enlarge the meaning of the offence u/s 3 of the 1971 Act by super adding the duty to stand up ? or did it even intend to do so.

The fundamental duty of respect to National Anthem is not justiciable by itself, but sought to be enforced by legislations such as 1971 Act, supplemented by the MHA orders. Can there be any criminality (duty/obligation) beyond the Act/Orders?

Can the duty to stand up be read into the law as a judicial creation, whereas S. 3 does not stipulate so anywhere?;

Can we not make a distinction in cases, and confine Bijoe (supra) only to those cases where not standing up may amount to disturbance or prevention, but not as a blanket requirement?;

5. Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened

Comment : Runs contrary to M.C.D vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481 & Cinematograph Act and Delhi Cinematograph Rules, 1953 (framed thereunder), which mandate an exit free from obstructions to ensure the safety of the patrons.

6. When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.

Comment : Too vague. What shall be the specifications of such an image.

7. The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

Comment : This runs contrary to the National Anthem Orders of MHA itself which permits Abridged National Anthem.

Conclusion : 

The decision leaves a lot to be desired as far as legality and constitutionality is concerned. It misses the point when it equates standing with respect. Respect for the National Anthem and Symbols has to be inculcutated and not enforced by sanction. With all respect, the decision appears to be incongruent with earlier precedent and freedom of speech and expression.

 

 

One comment

  1. The Basic Stucture of Constitution and the Principle of Natural Justice on which every law and court decision is based upon does not appear from this Judgement.

    Liked by 1 person

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