Shyam Narayan Chouksey vs.

Union of India & Ors.

By
Shivangi Goel
-
August 21, 2019
0
338

In Supreme Court of India

Writ Petition (Civil) No. 855 of 2016
Citation
(2018 ) 2 SCC 574
Equivalent Citation
AIR 2018 SC 357
Appellant
Shyam Narayan Chouksey
Respondent
Union of India
Date of Judgement
09 January 2018
Bench
(CJ) Deepak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud

Background

It all started with a writ petition filed under Article 32 of the Constitution of India
by the petitioner for issue of a writ of mandamus or any other appropriate writ or
order commanding the respondent to take appropriate steps in matters regarding
what would be constituting disrespect and abuse of the National Anthem. This court
on 28/10/2016 while entertaining the writ made reference to the enactment, namely,
Prevention of Insults to National Honour Act, 1971 . It has been alleged in the
petition that it is sometimes sung in various impermissible circumstances which
cannot be allowed given regard to the national honour. It was submitted by the
petitioner that the National Anthem is to be respected and shown due honour by
everyone in this country. Certain suggestions have been given to avoid the abuses.
The said suggestions are:

1. No commercial exploitation should take place to gain financial advantage or any

kind of benefit.

2. Until completion of the national anthem, there should be absolutely no

interruption in between and also no abridged version of National Anthem shall be
sung at any point of time.

3. There should not be any dramatization of the National Anthem and it should not
be sung in an entertainment programme.

4. It should only be sung in front of people who understands it and if sung before
the people who do not understand it, they should be properly apprised of the fact
that when the National Anthem of India is to be played, they are required to show
respect.

5. No printing and display of it on undesirable objects and in such a manner and at

such places which may be disgraceful to its status and may tantamount to
disrespect.

Apart from the aforesaid suggestions, it has also been prayed that directions should
be issued that the National Anthem should be played in the cinema theaters across
the country before the feature film and proper norms and protocol should be fixed
with regard to playing or singing of the National Anthem in an official function and
the functions where certain constitutional dignitaries are present in strict compliance.

Then on 30/11/2016, this court having heard the learned counsel for the parties and
awaiting reply from the Union of India, as an interim measure, directed that the
following directions shall be followed:-

• The person involved in the utilization of the National Anthem should not
in a manner directly or indirectly derive any commercial benefit out of it.
• It shall not be included as a part of any variety show and should not be
dramatized in any form as showing due respect and honour is imperative
on the part of everyone present. It is absolutely inconceivable to think of a
dramatized exhibition of the National Anthem.
• Not to be printed and displayed in a manner disgraceful to its status and
tantamount to disrespect as the concept of protocol associated with its
singing has its inherent roots in National identity, National integrity and
Constitutional Patriotism.
• It shall be played before the beginning of a feature film and everyone
present in the hall is obliged to stand up to show respect to the National
Anthem.
• The entry and exit doors shall remain closed before the National Anthem
is played or sung in the cinema hall on the screen, so that no one can create
any kind of disturbance which will amount to disrespect to the National
 Anthem and they can be opened after its played or sung. Also, while it is
being played in the Cinema Halls, it shall be with the National Flag on the
screen.
• Its abridged version made by any one for whatever reason shall not be
played or displayed.

Court further referred to clause (a) of Article 51(A), Fundamental Duties occurring
in Part IV A of the Constitution and held that it is the sacred obligation of every
citizen to abide by the ideals engrafted in the Constitution. And to show respect for
the national anthem and song is one of such ideals. The National Anthem which is
the symbol of the Constitutional Patriotism and inherent national quality binds the
citizens of the country to show respect to it as the citizens must realize that they live
in a nation and this is the basic duty. The idea of a different notion or perception of
individual rights is constitutionally impermissible.

It has been directed as recommended by Mr. Mukul Rohtagi, the then learned
Attorney General for India that:

1. National Anthem has to be respected. The love and respect for the motherland is
reflected when its symbols the anthem and flag are revered. That apart, it would
instill the feeling within one, a sense committed patriotism and nationalism.

2. Union of India shall circulate this order to the Chief Secretaries of all the States
and Union Territories and that the order shall be shown in the electronic Media and
published in the print media to make everyone aware about the order passed and
how it is to be followed.

Thereafter, on 9th December, 2016, it was submitted by the applicant that there has
to be some kind of exemption for the physically challenged persons or physically
handicapped persons. Mr. Siddharth Luthra, learned senior counsel who was present
in Court has referred to the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995. In case of a physically
challenged/handicapped person who goes to the Cinema hall to watch a film, he is
not compelled to stand up, if he is incapable to stand, but must act in such manner
equal to such conduct to show respect for the National Anthem. When we say
physically challenged or physically handicapped persons, it means persons with
disabilities as defined under Sections 2(i) and 2(t) of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Also
by the sentence ‘doors shall be closed’, it does not mean that the doors shall be bolted
but only to regulate the ingress and egress during the period while the National
Anthem is played.

Further an application for intervention was filed on behalf of the Conference for
Human Rights (India) and Kodungallur Film Society through its president and
another, namely, Anoop Kumaran listed on 14/02/2017 and submitted that this Court
may modify one of the directions, namely, direction (g) given on 30/11/2016. It was
submitted by the applicants that if the National Anthem is played during a newsreel
or documentary or feature film, the audience may not be compelled to stand. Mr.
Siddharth Lutha, learned amicus curiae, submitted that it may be clarified that the
people are not expected to stand when the National Anthem is sung or played as a
part of the storyline in the feature film or as a part of the newsreel or the
documentary. Mr. Rohatgi, learned Attorney General accepted the said suggestion.
Court upheld the same.

Court further referred to the new legislation brought by Parliament called ‘The
Rights of Persons with Disabilities Act, 2016. Section 102 repeals ‘The Persons with
Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act,
1995.

On 18/04/2017 an application for impleadment filed on behalf of the National

Platform for the Rights of the Disabled (NPRD) was taken up by this court to direct
the respondent to exempt certain categories of disabled persons from the purview of
the order of this Court dated 30th November, 2016 and 9th December, 2016.

The categories of persons mentioned are:-

(i) Wheelchair users – can be cerebral palsy, Parkinsons, Multiple sclerosis,
Muscular dystrophy or other conditions (ii) Those with autism (iii) Those with
cerebral palsy (iv) Intellectual disabilities (v) Mental illness (vi) Deaf blind (vii)
Multiple disabilities (viii) Parkinsons, Multiple sclerosis (ix) Leprosy cured (x)
Muscular dystrophy

The court modified the orders and directed that the above mentioned persons are not
to be included within the ambit of the orders passed by this Court.

Further an Inter-Ministerial Committee has been formed by an order/notification

dated 5th December, 2017. The Committee has been given the responsibility to make
recommendations for regulating the playing/singing of the National Anthem and to
suggest changes in the 1971 Act or in the Orders relating to the National Anthem of
India.

Facts:

The above mentioned matter has been listed under this Court on 9/01/2018.

Contentions:

Petitioner’s Contention:

(a) The Prevention of Insults to National Honour Act, 1971 vide Section 3 only deals
with prevention of singing/playing of the National Anthem, but it does not deal fully
as to how respect is to be shown and, therefore, appropriate measures should be
prescribed by law in that regard.

(b) Referred to Article 51A(a) of the Constitution which provides that the ideals and
institutions of the constitution, the National Flag and the National Anthem, is to be
abided by every citizen of the country and every citizen or person in this country has
to show respect to the National Anthem wherever it is played.
(c) The Preamble of the Constitution uses the word unity and integrity of the Nation
and the said words are required to be interpreted on a broad canvass so that honour
and respect due to the National Anthem are maintained.

(d) The order passed by this Court sub-serves the cause of integrity of the Nation
and, therefore, need not be recalled and should be made absolute.

(e) The instructions issued under the heading “Orders Relating to the National
Anthem of India”are executive in nature as they relate to various aspects and are not
binding and, therefore, there has to be an appropriate law in the field and in the
absence of law,

Respondent’s Contention:

a. K.K. Venugopal, learned Attorney General, contented that till the formulation of
further executive instructions, the mandatory order passed by this Court for
playing/singing of the National Anthem before starting of feature films in cinema
halls may be modified by making it directory.

b. Various other intervening senior counsels held that in the absence of any laws
this court should not make the playing of the national anthem in cinema halls
mandatory and even if citizens are obliged to show respect cinema halls are not the
appropriate place.

Issues:

a) Whether it is mandatory to play the national anthem in theatres?

b) Whether People are bound to show respect?

Judgement:
Mr. Sidharth Luthra, learned Amicus Curiae, has submitted that Article 51 A of the
Constitution has been brought when the 1971 Act was in force and, therefore, it has
to be understood in the said perspective. He has also submitted that Section 2 (which
deals with insult to Indian National Flag and Constitution of India) of the 1971 Act
was amended with effect from 8th May, 2003, as a consequence of which, respect
to the National Anthem is a part of the statutory provision.

It is his further submission that once the words ‘or any part thereof’ have been used
in Section 2 of the 1971 Act, the same is bound to be read in consonance with Article
51A(a) of the Constitution and hence, it presently gets ingrained as a statutory
command.

Court referring to Section 3 of the 1971 Act and clause III(4) of the orders, held that
on a perusal of the said provision, it is clear that:

1. No one can intentionally prevent the singing of the National Anthem or cause
any disturbance to an assembly engaged in such singing. It is a penal provision.
The Orders relating to the National Anthem deal with playing of the anthem, mass
singing of the anthem, playing of foreign anthems and general provisions.

2. It is clear that the said Order states that it is not possible to give an exhaustive
list of the occasions.

3. It further lays down that there is no objection to the singing of the National
Anthem accompanied by mass singing so long as it is done with due respect as a
salutation to the motherland and maintenance of the proper decorum.

This Court in Bijoe Emmanuel and Others vs. State of Kerala has also emphasized
on respect to the National Anthem. It sustained the right of the petitioner therein, but
yet observed that a person who stands up respectfully when the National Anthem is
sung, is showing proper respect. Thus, the stress is on respect when the National
Anthem is sung or played.
Court referring to the statement of objects and reasons of the 1971 act held that one
is compelled to show respect whenever and wherever the National Anthem is played.
It is the elan vital of the Nation and fundamental grammar of belonging to a nation
state. However the place or occasion has to be prescribed by the executive keeping
in view the concept of fundamental duties provided under the Constitution and the
law. And so in view of the aforesaid, the court found it appropriate that the
Committee should comprehensively look into all the aspects.

In view of the aforesaid, court disposed off the writ petition with the following
directions:

1. The Committee appointed by the Union government shall submit its

recommendations to the competent authority in terms of the Notification dated 5th
December, 2017, for follow up action.

2. The order passed on 30th November, 2016, which made the playing of the
national anthem prior to the screening of feature films in cinema halls mandatory
has been modified to the extent of being optional or directory.

3. The Committee constituted by the Union government to look into all aspects of
the matter shall make its recommendations uninfluenced by the interim directions
of this Court, as clarified in our order dated 23rd October, 2017.

4. The executive orders relating to the National Anthem of India and the prevailing
law bind the citizens or persons to show respect whenever it is played or sung on
any specified occasions.

5. Disabled persons shall remain to be exempted till the final decision of the
competent authority.

Overview:
The case is important in the history of India as it inculcates a proper sense of paying
respect to the National Anthem. National Anthem is the national symbol
representing the nation along with the national flag and the constitution of India.
These symbols are the pride of the nation and any disrespect towards them becomes
a matter of grave concern for any nation. Respect towards national symbols is the
very basic duty of every person as a citizen of India under Article 51 (A) and
promotes a sense of unity, oneness and nationalism among the public.

Edited by J. Madonna Jephi

Approved & Published – Sakshi Raje