The Supreme Court bench of Chief Justice Dipak Misra and justices AM Khanwilkar and DY Chandrachud on January 9 accepted the submission of the Centre that cinema theatre owners could have the option of not playing the national anthem before the start of every show as mandated by the court earlier. However, the court, after an hour-long hearing of the counsel, representing various stake-holders, made it clear that if they choose to play the national anthem, patrons have to show respect by standing up.
With today’s ‘modification’ order, the court disposed of the public interest litigation petition, filed by Shyam Narayan Chouksey, which had led to its controversial interim order on November 30, 2016, making it mandatory for cinema owners to play the anthem at the start of every show. The exemptions, granted earlier by the court to persons who cannot stand up because of their specified disabilities, would continue.
Earlier, the bench took note of the Centre’s affidavit, brought to its notice by the Attorney General KK Venugopal, who suggested that the court could replace the words ‘shall play’ used in the interim order of November 30, 2016, with ‘may play’, leaving it to the discretion of the cinema owners whether to play the anthem or not. Venugopal assured the court that the inter-ministerial committee constituted by the government is likely to make its recommendations within six months on amending the relevant laws and executive orders for the purpose.
The inter-ministerial committee is headed by additional secretary (border management), Ministry of Home Affairs, with representatives from the ministries of defence, external affairs, culture, women and child development, parliamentary affairs, information and broadcasting, minority affairs, and departments of legal affairs, school education and literacy and empowerment of persons with disability.
Upon considering the recommendations made by the committee, the Centre assured the court that it might bring out the requisite notification or circular or rules in this regard, if required. The change in the stand of the Centre, which had earlier favoured the court’s interim order making the playing of anthem mandatory before the start of every show, follows the court’s directive to it to “take a call, without being influenced by its order”. The court had emphasised that the Centre could use its discretion to “regulate in an inclusive manner or as it feels fit”.
During the hearing, the counsel for the petitioner, Abhinav Shrivastava, drew the court’s attention to the ambiguity in the Prevention of Insults to National Honour Act, 1971, which gives various instances of insults to the national flag and the constitution of India, but is silent on insults to national anthem, beyond prevention of its singing, or causing disturbances to an assembly engaged in such singing. It is not clear whether not standing up during the anthem constitutes insult under the Act, he said. He claimed that the Centre’s executive orders in this regard are not being followed, which justifies the court’s intervention.
Also read: How the Supreme Court Almost Recalled Its Order on Playing the National Anthem in Theatres
Senior counsel, CU Singh, representing an intervener, Kadungallur Film Society, Kerala, which had sought the recall of the November 30, 2016 order, however, opposed the petitioner’s contention saying the court is not the right forum for removing this ambiguity, and that he should approach the parliament for the purpose. He suggested that the parliament, in its wisdom, believed that insults to the national anthem have to be determined on a case-to-case basis, and therefore, an exhaustive list of insults, specified in the Act in the case of national flag and the constitution, was not considered appropriate.
Venugopal too agreed with Singh that disrespect to the national anthem should be considered on a case-to-case basis, but assured the court that the petitioner’s suggestions would be considered by the committee.
Singh expressed his satisfaction with the change in the Centre’s stand on the issue.
Senior advocate Rajeev Dhavan, representing an impleader in the case, submitted that the national anthem has sacred elements. “Let it not be trivialised all the time,” he told the court after observing that its earlier order, aimed to promote respect for anthem, had only led to the rise of “popcorn nationalism”.
While it is anybody’s guess on what the committee would recommend and what the Centre’s ultimate stand on the recommendations would be, today’s outcome shows that the court wriggled out of the case using the change in the Centre’s stand as an excuse, as it became increasingly clear that the judiciary ought not to have intervened in the matter in the manner it did.