CRITICAL ANALYSIS ON THE NATIONAL ANTHEM ORDER

Transcription

1 CRITICAL ANALYSIS ON THE NATIONAL ANTHEM ORDER *KARANDEEP KUNDU Introduction- On 30th November 2016, the Supreme Court had ordered that the National Anthem must be played in public theaters the nation over before a motion picture, less any sensation, trying to advance patriotism. I respectfully disagreed with the apex court's ruling back then, as compelling citizens to respect the country is a great insult to India. The National Anthem is only a symbol of our nationhood and symbols, by their extremely nature, can be changed whenever. It is our country that is more vital; our national estimations of liberty, freedom and democracy that should be secured significantly more than symbols like the national flag or the anthem. It is the constitutional duty of each citizen, under Article51A (a) of the Constitution, to respect its ideals and institutions, the National Flag and the National Anthem. Standing throughout the national anthem does not necessarily mean respect for the national anthem. Nor does sitting during the anthem mean disregard or qualify as a crime. What qualifies as crime is a intentional act committed to insult the National Anthem. Section 3 of the Prevention of Insults to National Honour Act, 1971 (as amended in 2005) does not dictate whether a person should sit or stand when the anthem is playing or sung. Section 2 of the Act leaves nothing to imagination when it states what constitutes an insult to the national flag and the Constitution. These consist of public acts of burning, mutilating, defacing, defiling, disfiguring, destroying, and trampling upon the National Flag or the Constitution. The Ruling of Karnataka High Court, in N.R. Narayana Murthy vs. Kannada Rakshana 1, defines the national flag, national anthem and the Constitution of India as the symbols of sovereignty and the integrity of the Nation 2. 1 AIR 2007 Kant

2 However, numerous judgments show that the courts have always taken into concerns the diverse faiths and beliefs practiced by citizens. The 1986 Supreme Court judgment in Bijoe Emmanuel vs. State of Kerala 3 dealing with the expulsion of three kids who belonged to the Jehovah s Witnesses sect, for refusing to sing the national anthem in school, said this was opposing to fundamental rights of free speech and freedom to practice their religion. The ruling is extremely noteworthy because it affirms that no one can be legally compelled to violate his conscientiously held religious beliefs. While identifying that fundamental rights are not absolute and are subject to public order, morality, and health, the Court limited the State s ability to impose on its citizens arbitrary and disproportionate restrictions. In the Naveen Jindal vs. Union of India 4 judgment, a three-judge Supreme Court Bench headed by then Chief Justice of India V.N. Khare upheld the citizen s fundamental right to fly the national flag freely with respect and dignity. Present Position- There is no need to be on your feet inside a cinema hall when the National Anthem is featured as a part of a film, documentary or a newsreel. On 14 th February 2017,Supreme Court issued this second clarification on its November 30 order, directing all to mandatorily stand up when the National Anthem is sung or played in a cinema theatre. Several applications filed The court s explanation came after several claims were filed on the question, including from the Conference for Human Rights and the Kodungallur Film Society. On December 9 th 2016, the Supreme Court first amended its November 30 order by exempting physically challenged or handicapped persons from standing up when the National Anthem is played before film screenings SCR (3) SPECIAL LEAVE PETITON (C) NO OF

3 On November 30, the court had ordered cinema halls to mandatorily play the anthem and had directed all those present there to stand up to show respect. The order came on a writ petition filed by Shyam Narayan Chouksey in October The petition, which referred to the Prevention of Insults to National Honour Act of 1971, claimed that the National Anthem is sung in various situations which are not permitted and can never be approved in law. 5 The Hon ble Supreme Court in Shyam Narain Chouksey v. Union of India 6 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. 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: There is absolutely no prohibition on the National Anthem being made a part of a movie or a documentary. Neither the Cinematograph Act (nor the Rules made thereunder), or 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. Parliament has not been unmindful of National Honour. The Prevention of Insults to National Honour Act was enacted in While Section 2 deals with insult to the Indian National Flag and the Constitution of India, Section 3 deals with the National Anthem and states- Section 3: Prevention of singing of Indian National Anthem, etc. whoever deliberately prevents the singing of the Indian National Anthem or causes disruption 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. 5 Supreme-Court/article ece 6 Writ Petition Civil No. 855/

4 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. 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. Be that as it may, when over the span of a newsreel or documentary the Anthem is had as an impact of the film, it is not anticipated that of the audience would remain as standing will undoubtedly intrude on the show of the film and would make issue and disarray as opposed to add to the respect of the Anthem. This was followed by an advisory (No.15/3/2016-Public) by the Ministry of Home Affairs, dated 11 th 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 expand, the National Anthem ought not to be used by which the individual required with it either straightforwardly or in a roundabout way might have any business advantage or some other advantage. 26

5 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 nonprofit documentary, whether in that case the National Anthem can be used, and if yes, what will be the extent of permissible use? 2) There might not be dramatization of the National Anthem and it ought not be incorporated as a piece of any theatrical presentation. It is on account of when the National Anthem is sung or had it is basic on the impact of each one present to appear due regard and respect. To consider a sensationalized show of the National Anthem is totally vast. 3) National Anthem or a piece of it might not be printed on any object and furthermore never be shown in such a way at such places which might be shocking to its status and commensurate to slight. It is by virtue of when the National Anthem is sung, the possibility of tradition related with it has its intrinsic roots in National character, National uprightness and Constitutional Patriotism. 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. 27

6 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. 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 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) 7. 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, moreover, what can't be dismissed is that: the violation of the Court's request may involve disdain procedures against the contemnor. Since there are penal consequences (jail/fine, or both) connected to this, the court arrange must be clear and unambiguous and set down with accuracy, the correct direct that is tried to be prohibited. As illustrated, the import and significance of the words "dramatization" and 'financial favorable position' is a long way from particular and may uncover a movie producer/theater proprietor to liability, without setting out an unmistakable set of accepted rules. An arrangement of penal nature should be particular. This renders the impugned directions unsustainable as the same may be "obscure" "omnibus" 'widely SCR (3)

7 inclusive' which makes serious in-roads into the 'Freedom of Speech and Expression' of a native. There are no sensible and target gauges on which liability of a national for violation of the court request can be arbitrated. There ought to be a reasonable line dividing the permitted and the forbidden speech for the direction of the nationals, movie producers, theater proprietors and so forth. At the point when a judgment utilizes 'obscure expressions' fit for abuse, mishandle without giving notification to people of basic knowledge to figure their importance, it abandons them in an unlimited ocean of vulnerability, giving wide and liberated power on a rubberneck to arraign the national, movie producer, theater proprietor. Such a request and potential evil won't qualify as 'just, reasonable and fair' procedure and not fulfill criteria of due process of law, being arbitrary. 4) Every cinema halls in India shall play the National Anthem before the motion picture starts and all present in the hall are obliged to stand up to show respect to the National Anthem. The issue that emerges is whether the Court can, without a law, force the anthem's screening in Cinema Halls? What is the legitimate premise of such a direction? Furthermore, why just Cinema Halls. Is it not a violation of the freedom of speech and expression (which incorporates freedom not to speak) and constitutes a trespass into the freedom of trade, business and profession, which as examined prior, can be confined by way of a "law" and not a judicial fiat. Could the theater proprietors/motion picture creators assert violation of Article 14 on the ground of being singled out? Would this be a reasonable classification? Singling out theaters for playing of National Anthem, while leaving other entertainment ventures, for example, plays/theater/sports occasions/move appears/shake shows, out? Furthermore, if at all cinema is distinctively put in order to warrant an alternate treatment, what is the nexus with the object tried to be accomplished? 29

8 In addition, the Supreme Court in E.P.Royappa v. State of Tamil Nadu, and later in Ajay Hasia v. Khalid Mujib Sehravardi has propelled a stage from the doctrinaire tests of reasonable classification, and held that : well beyond the trial of rational differentia to legitimize unequal treatment to unequal's, the law would likewise need to fulfill the trial of nonarbitrariness, Natural Justice, Reasonableness and Fairness. This guaranteed "classification" is not the 'be all and end all' of right to equality and has enlarged the space of judicial review. As regards the duty to stand up? Can we say Bijoe Emmanuel & Others v. State of Kerala 8 : really imposed that duty? We may contend that it does not. Since we have seen Section 3 of the Prevention of Insults to National Honour Act, 1971 only penalizes intentional 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 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; In fact, 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 favor 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. 8 AIR 1987 SC

9 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) Before playing National Anthem Prior in the cinema hall on the screen, the admission and leaving doors shall remain closed so that no one can create any type of trouble which will amount to disregard to the National Anthem. After the National Anthem is played or sung, the doors can be opened. Runs contrary to M.C.D vs. Association of Victims of Uphaar Tragedy 9 & 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. Too ambiguous. What shall be the stipulations of such an image. 7) The shorten version of the National Anthem made by any one for whatsoever object shall not be played or showed. This runs contrary to the National Anthem Orders of Ministry of home affairs itself which permits Shortened National Anthem. 9 (2011) 14 SCC

10 Conclusion : The national anthem ought to be played when respect is to be paid to the nation. Exactly why are we required to pay respect to the nation before viewing a movie? It's as coherent as making a request to play the national anthem before eating at an restaurant, or each morning before entering the workplace, or at each toll stall on the highways. Exactly why? In October 2015 in Goa, writer Salil Chaturvedi didn't stand up for the national anthem. He was assaulted by a couple from behind. The gatekeepers of nationalism who beat him didn't know he experienced a spinal injury that kept him from ascending on his feet. Mr. Chaturvedi is an award-winning disability rights activist. There have been many such cases of people taking to violence in cinema halls if someone doesn't stand up for the national anthem. With due respect to the honorable apex court, once in a while you ask why they invest energy in things best left to the administration or then again, on truly immaterial things. What is this unity we need? Aren't we already united? 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 inculcated and not enforced by sanction. With all respect, the decision appears to be incongruent with earlier precedent and freedom of speech and expression. 32