This article is written by Diganth Raj Sehgal, Student, School of Law, Christ University, Bangalore. In this article, the author has discussed the position of law in India on standing up for the national anthem with reference to the case of Shyam Narayan Chouksey vs Union of India.

Introduction

As recent as on 11th May 2019, it was reported that a man from Bangalore was arrested by the police on charges of dishonouring the nation as he refused to stand up for the national anthem that was played before the movie in the cinema hall and was later released on bail. There is also a contradictory story reported which said that the charges on this man were dropped and the paper claimed that the supreme court had, post the Shyam Narayan Chouksey case, given another order stating that standing during the national anthem was not mandatory. Therefore, it is uncertain as to what is the present status of the law.

Many Indians have this question which needs to be answered by the law and the legal authorities whether it is compulsory to stand up for the national anthem. According to several renowned personalities across the globe, it gives a sense of pride and there is nothing wrong in promoting respect for the national anthem of one’s country.

On the 1st December of 2016, Hon’ble Justice Misra and Hon’ble Justice Roy of the Supreme Court while hearing the matter of Shyam Narayan Chouksey passed an interim order making it compulsory for;

1. cinema halls and theatres to play the national anthem before every movie screening
2. patrons or viewers to pay respect to the national anthem my standing still.

This move or order was brought about with the objective of:

1. Standardizing or setting the manner in which a citizen of the country has to show their respect towards the country
2. Instilling nationalist notions and feelings amongst citizens

According to the Prevention of Insults to the National Honour Act, 1971, it is compulsory for a citizen to pay respect to not only the national anthem but also the national flag. However, the reasoning for the interim order provided by Hon’ble Justice Rohatgi was to standardize the way in which nationalist feelings are conveyed. Clause (1)(a) of Article 19 states that the state may pass any such law placing restrictions on Article 19(1) which must be reasonable. The question that needs to be addressed and will be addressed in the research paper is whatever or not the reasoning provided by the bench is reasonable. If not, the interim order based on the Prevention of Insults to the National Honour Act, 1951 is violating Article 19(1)(a), being violated for an unreasonable restriction and the order must be struck down. If the reasoning of “individual perceived notion of freedom” stands valid and reasonable, thus not violating Article 19(1)(a), then the order should stand.

Background of the Case

All this was discussed in the case of Shyam Narayan Chouksey v. Union of India which brought about a storm on social media about curbing the expression of freedom of one with respect to nationalism, nationalist sentiments and also the case addressed questions such as commercial usage of the national anthem and avenues of its use. To understand further about the case and its developments as to how it is today, we need to lay emphasis on the precedents and reasoning used by the bench in those cases.

Talking about the case in hand, the apex court of India passed a judgment compelling the display of the national anthem before every screened movie and making it mandatory for all patrons to rise for the duration of the feature presentation (containing the national anthem), which has been hotly debated within the legal fraternity as well as amongst the common man of the country and has raised questions regarding the degree of nationalism the apex court wishes to inculcate within India.

Relying on the precedents of the instant case, we find similar facts but certain aspects of the precedents, certain important facts are different. For example, in the case of Bijoe Emmanuel vs. State of Kerala, three students were expelled from their school for not singing the national anthem. In this case, according to the Kerala Education Act, 1958, rules and guidelines regarding proper inculcation of patriotism must be ensured, an environment should be created in the school to develop the right kind of patriotism in the children. Neither religion nor party nor anything of this kind should stand against one’s love of the country. For national integration, the basis must be the school. National Anthem. As a rule, the whole school should participate in the singing of the National Anthem.

Thus under the Kerala Education Act of 1958 was violated by the 3 students who refused to sing the National anthem along with the other students when it was played, because their right to religion was being violated. This was because the three students belonged to the Jehovah’s witnesses community and thus as per their religious beliefs, the first lines of our national anthem, Jana Gana Mana, violated their religious beliefs.

The Supreme court, in this case, held that the three students weren’t guilty of disrespect to the national anthem as they merely refused to sing the national anthem and not disrespect it by not standing. The judgment included the reasoning that the there is no legal provision that obliges anyone to sing the National Anthem, and it is not disrespectful to the Anthem if a person who stands up respectfully when it is being sung does not join in the singing.

This case, however, did not deal with the issue of whether it would be disrespectful if a person chose not to stand during the National Anthem.

Another similar case, in fact, filed by the same person, regarding the same issue, in 2003. The facts of the case were even more similar to the instant case than that of Bijoe Emmauel vs. State of Kerala.

In 2003, the petitioner, Shyam Narayan Chouksey, moved a petition in the Madhya Pradesh High Court accusing producer-director Karan Johar of insulting the national anthem in his movie Kabhi Khushi Kabhi Gham. Chouksey complained that a scene in the movie depicted the national anthem in poor light. Further, he stated that people in the hall did not stand when the anthem was played.

The facts of the previous case were such that, the petitioner, was disappointed about the fact that no one apart from the petitioner and a few others were sensitive and sensible enough to stand when the national anthem was played during a screening of the movie in a theatre in Madhya Pradesh. Following this incident, the petitioner proceeded to file a case in the Madhya Pradesh High court stating that, it is an insult to the national anthem of our country and it must be made mandatory for all patrons to stand up as a sign of respect towards our national anthem.

The Madhya Pradesh High court, in its judgment, stated that the movie to be withdrawn from all movie theatres until the producer edited out that particular scene.

Ultimately, in 2006, after Mr. Chouksey appealed to the Apex court, it passed a judgment allowing the movie to be played in movie theatres again.  

Analysis

Analysing the precedents relied upon in for the instant case, we see as the wheels of time turned, the judiciary interpreted a more strict or stringent form of expression of freedom in terms of respect shown to the national anthem.

While in Bijoe Emmanuel vs State of Kerala, we see that the Apex court clearly laid down as to what is to constitute disrespect and what is not, the following precedent, i.e., Shyam Narayan Chouksey vs. Union of India, the ambit of location or factor of location was also introduced, by making sure audience in cinema halls are sensitive enough to stand for the national anthem when played.

In the instant case, emphasis was laid upon the fact that certain aspects of reality that has been noticed by the petitioner. For example, how the national anthem has been used for commercial purposes, dramatization of the national anthem, interruption of the national anthem being played or any other version of the national anthem being played. Thus for these very reasons, the petition was filed and making a reference to the Prevention of Insults to National Honour Act, 1971. Section 3 of the Prevention of Insults to National Honour Act, 1971 talks about prevention of singing of the national anthem, which states that whoever intentionally disrupts an assembly engaged in paying its respects while the national anthem is played will be punished under the law.

Even though the petitioners in good faith wanted to prevent the commercialization of the national anthem. He further contended that the national anthem should be played in the theatres before a movie and whether it should be made mandatory for all persons to stand is debatable.

The Supreme Court, in its wisdom, taking into careful consideration the arguments of both sides, decided that the recommended orders by the side of petitioner be implemented. The recommendations proposed, thus included the point that every patron must stand while the national anthem is played in the beginning and the doors of the theatre hall must be closed and no one will be allowed to leave.

It can be fairly said that comparing the instant case judgment to that of the precedents, the precedent case judgments aver to call of justice for the sufferers while having to ensure that the judgment doesn’t place any kind of burden on anyone else. For example, in Bijoe Emmanuel case, the court in its wisdom ensured that the Kerala Education Act, 1958 was interpreted in such a manner that it doesn’t add to the suffering of the students as well as stated that merely not singing doesn’t tantamount to disrespect to the national anthem and since the students stood up to pay their respects, they didn’t violate any laws.

Thus, compared to Bijoe Emmanuel case, the instant case judgment, although in good faith that can be seen through the recommendations of side petitioner, places an unnecessary burden on the patrons by making it mandatory for them to stand when the national anthem is played before every movie screening.

The aspect of law and its validity being questioned is whether or not the judgment of the said case is constitutionally valid or not. To ascertain the aforementioned validity, Article 19(1)(a) will be analysed along with the rationale behind the court’s decision for this case

Article 19(1)(a) of the constitution of India provides its citizens with the right to freedom of speech and expression. However, what we observe in the judgment of this case is arbitrary restriction of freedom of speech and expression in terms of expression of one’s respect towards the country. The Apex court through this judgment has restricted this form of expression towards our country quite much.

The rationale behind this judgment in the argumentation and justification is that the national anthem and flag has to be respected for which the guidelines and standardized ways must be set. Article 51A, which is a fundamental duty is being referred here, which states that every citizen of the country must abide by the Constitution and respect its ideals, the national anthem and national flag. The judgment aimed to provide set actions and procedures to fulfil the underlying idea of Article 51A of the Indian constitution.

Through this judgment, the court, in good faith tried to provide a standardized way of expressing a citizen’s love for the country. However, this decision has been seen as arbitrary and restrictive of one’s ways to profess their love for the country. Thus justification falls short and doesn’t explain as to why must the average patron’s right to speech and expression be curbed in such a manner, while the other recommendations do benefit society and ensure the spirit of our national flag and anthem, which represents the patriotism isn’t misused.  

The reasoning that upholds the validity of the judgment stands partially correct. It can be said that the judgment does infringe upon Article 19(1)(a) of the Indian constitution which guarantees the right to freedom of speech and expression, as it restricts the ambit of possible positive actions that one can undertake with the objective to express their love and respect for the country.

Another aspect that needs to be analyzed is whether such a judgment is required for the fulfilment of sort of implementation of Article 51A, which states that every citizen of the country must abide by the constitution and respect its ideals, the national anthem and national flag.  

To answer this question we must analyze how the court has interpreted this Article in the precedents that have been cited above elaborately. The court in Bijoe Emmanuel case has made no reference to Article 51A of the Indian constitution. It solely relies upon the Kerala Education Act and emphasis was laid upon Article 19(1)(a). Thus, the Bijoe Emmanuel case doesn’t touch upon the aspect of nationalism.

The other precedent that the instant case has relied upon is the case of Shyam Narayan Chouksey v. Union of India, wherein the court does take into consideration Article 51A of the Indian constitution and as stated in the judgment, wanted to bring in standardization in the way people portrayed their love for the country.

Analyzing the importance of Article 19(1)(a) over Article 51A, the freedom of one definitely triumphs over the duty to explicitly express one’s patriotism and particularly in such a specific manner. Although, Article 51A’s contentions of instilling patriotism and respect for the national anthem and the national flag are the noblest, however the interpretation for this article in that of the instant case and precedent (Shyam Narayan Chouksey vs. Union of India, 2003) has proved failed to take cognizance of the individual rights of expression.

An impact that the court expected via the judgment of this case was a sense of nationalism to be instilled amongst the people. The court felt the appropriate method would be introducing a standard way and compelling the people to follow it to inculcate the habit of portraying this patriotism.

However, the outcry against the judgment clearly shows the backlash that the judgment has caused, rendering its original purpose and motive useless.

Current Position of Law

At present, as per the interim order in the Shyam Narayan Chouksey Case, Justices A M Khanwilkar and D Y Chandrachud emphasised that it is mandatory for people to stand when the national anthem is played. This is provided that the persons do not fall under the exception laid down in the case, i.e disability. But, it is no longer mandatory for cinema halls to play the national anthem before the screening of a film, rather it is the discretion of the cinema hall owners to play or not play the national anthem. This was decided by a bench headed by Justice Dipak Misra which modified the order given by the same court on 30.11.16.

After hearing arguments, the court disposed the writ petition with the following directions:

1. The Committee which is appointed by the Union government must submit its recommendations to the competent authority in terms of the Notification for follow-up action.
2. The order passed on 30.11.16, was modified to the extent that playing of the National Anthem prior to the screening of feature films in cinema halls is not mandatory, but optional or directory.
3. As the Committee constituted by the Union government was looking into all aspects of the matter, the court ordered that it shall make its recommendations uninfluenced by the interim directions of the Court. Similarly, the competent authority, in taking its decision(s) is not to be constrained or influenced by any of the interim directions.
4. Citizens or persons are bound to show respect as required under executive orders relating to the National Anthem of India and the prevailing law, whenever it is played or sung on specified occasions,
5. The exemption granted to disabled persons shall remain in force till the final decision of the competent authority with regard to each occasion whenever the National Anthem is played or sung.

Conclusion

The judgment, although in utmost good faith, tried to instil a sense of patriotism and nationalism by invoking the responsibilities stated in Article 51A, does put the common man in a tough spot. By passing an order that made it mandatory for all patrons viewing a movie to stand while the national anthem is played, in essence, does place a restriction on the freedom of expression of the people.

It can be seen that the judgment does bring out  a positive change by not allowing anyone to use the national anthem or flag for commercial purposes (one of the recommendations by side petition), but also allowing a miscellaneous recommendation, which places the unfair restriction stated above, it ends up partially violating a citizen’s right to freedom and expression [Article 19(1)(a)].

Further, the justification provided by the Judges of the case and also the arguments of the Attorney General of India is insufficient and non-comprehensive. It can be observed that the judgment solely focuses on two aspects; Insult to the national flag and anthem in terms of commercialization and dramatization and insensitivity and lack of patriotism amongst the common man of this country. While the court took cognizance of both the aspects, the court failed to further analyze the possible ways in which one can instil the feeling of patriotism and nationalism in the citizen of the country. Instead of analyzing the aspect, the court undertook the decision to standardize the manner in which one must should their love for the country, which in the previous paragraph has been concluded as arbitrary on the citizens.   

The modification of the order was in tune with the arguments involving both freedom of trade and profession of the cinema owners as well as the idea that playing of the national anthem when persons have gathered for the purpose of viewing a movie may not be ideal.

Finally, with respect to the conclusions made above on the basis of the analysis that one can conclude that the fundamental right to freedom of speech and expression, or Article 19(1)(a) has definitely been violated, because of the recommendation that mandates that the national anthem be played before every screening and all must rise to respect it. By this particular recommendation, a citizen’s freedom of speech and expression is curbed because of the standardization of the process. Further, such an order in the name of Article 51A still violates the fundamental rights of a citizen.