Misplaced Nationalism at the behest of the Apex court

This article has been written by Torsha Sarkar. Torsha is a third-year law student in National Law University Odisha.

As if the year 2016 has not already been riddled with enough governmental mishaps and incidents, the Apex Court of the country decided to rush in an add its two bits of contribution to the mix. On 31st November, through the judgment of Shyam Narayan Chouskey v. Union of India, made it mandatory for movie theatres to play the national anthem before beginning of any movie screening, and also made it mandatory for the audience to stand up while the anthem is being played. What’s more, the Court also turned directors, and asked the national flag to be displayed in the screen while the anthem is being played, and the theatres to be closed from outside while the anthem is being played.

This judgment is a glaring departure of the progressive judgment of Bijoe Emmanuel v. State of Kerala[1], where three children belonging to the faith of Jehovah’s Witness were expelled from school for refusal of singing of the National Anthem. The reason of such refusal was religious, and upon expulsion, the parents of these children filed a Writ Petition claiming infringement of their Fundamental Rights.

Supreme Court, through Justice Chinappa Reddy observed that, firstly ‘it will not be right to say that disrespect is shown by not joining in the singing’[2]. This statement serves as a pertinent point in the current discussion. Also, the Court brought up the fact that the Parliament had indeed legislated to this regard, enacting The Prevention of Insults to National Honour Act. Section 3 of the Act mandates that whoever prevents intentionally the singing of the national anthem shall be punished.

In the end, Justice Chinappa Reddy held that, indeed the expulsion of those three children was a irrational move, and as long as a person does not intentionally prevent somebody else from singing the national anthem, nobody can be charged with any criminal act.

The postition of the law prior to Shyam Narayan Chouskey.

Sadly, however, this dictate has rarely being followed, as is with our country. In mid – 2014, M Salman, a resident of Thiruvananthapuram was arrested because of his and his friend’s behaviour in a state-owned movie theatre. Reportedly, they did not stand up during the time when the national anthem was being played, and Salman was also allegedly seen ‘hooting’. Salman was charged for sedition under section 124A of the Indian Penal Code, as well as under section 66A of the IT Act, for posting derogatory comments about the national flag in Facebook.

The District Court convicted him under these charges, declaring that the offence was ‘much more serious than murder’. For a bail from High Court, Salman had to pay Rs. 2 lakhs as surety, and also was made to appear in front of the Investigation Officer twice a week[3].

Legality of Shyam Narayan Chouskey.

At the forefront it should be mentioned that there is no law that was being enforced by Justice Deepak Misra, when he gave out this judgment. There was no Fundamental Right of anybody being violated by not playing the national anthem in the theatre. Rather, the Court took it upon itself to go about enforcing a Fundamental Duty of the citizens, to foster a spirit of nationalism and whatnot.

The Court issued several guidelines for the government and movie theatre owners to follow. The first direction is “there shall be no commercial exploitation to give financial advantage or any kind of benefit”.The next direction is also somewhat related to the first one. The Court directed that no film, drama or any other visual representation can have the national anthem as a part of its show. Taken the two directions together, and based on the fact that it was Justice Dipak Misra who delivered the judgment, it is clear that the honourable judge is still clearly sore over the fact that the Supreme Court had overturned his previous judgment whereby he had banned the movie Kabhi Khushi Kabhi Gham from playing the national anthem in its show[4].

The next direction is the one generating so much debate fuel. By this direction, the Court makes it mandatory that at the beginning of every screening of movies in a movie theatre, the national anthem has to be played, and all citizens have to mandatorily stand up for it. Interestingly, the Court provides no procedure to implement this direction, neither does it provide any sanction for disobeying this order. Perhaps, the Court has faith in the overzealous nationalist sect of the population to set this straight. Moreover, a follow up news report shows that 20 people have been already arrested for failing to observed the direction, and released on bail. They had been charged under Prevention to National Honour Act, 1971, and could face upto three years of imprisonment[5].

The last direction makes it mandatory on the movie theatre authorities to have the doors of the theatre latched from outside while the national anthem is being played, so that nobody can get out. Precedents be damned, the honourable judges decided to ignore the previous judgment of the Apex Court, which had very categorically stated that under no circumstances can the theatre be closed from outside[6]. But when ‘constitutional patriotism’ is at stake, even a fire, or any other disaster should not impede our nationalistic pride.

[1]     Bijoe Emmanuel v. State of Kerala, [1986] 3 SCR 518

[2]     ibid

[3]     Saurav Dutta, ‘Are we legally bound to stand during the National Anthem?'<http://www.caravanmagazine.in/vantage/are-we-legally-bound-stand-during-national-anthem&gt; last accessed 11th October 2016

[4]     Alok Prasanna Kumar, ‘Supreme Court’s National Anthem order mocks judicial process, Constitution'<http://www.firstpost.com/india/supreme-courts-national-anthem-order-mocks-judicial-process-constitution-3134204.html&gt; last accessed 16th October 2016

[5]     Raija Susan Panicker, ’20 Arrested In 48 Hours For Failing To Stand For Anthem In Cinemas'<http://www.ndtv.com/india-news/20-arrested-in-48-hours-for-failing-to-stand-for-anthem-in-cinemas-1637378&gt; last accessed 16th December, 2016

[6]     Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, [2011] 16 (Addl.) SCR 1

The December book bucket

court-room-genius                    Learning the law.jpg                     legal-eagles

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