Saturday, December 3, 2016

Rambling Thoughts on playing of the National Anthem

The recent controversy about the national anthem got me  bit interested in researching and "opiniating" on this a bit further. There has been sufficient media coverage on this but I learnt from my almost lawyer daughter the importance of reading a judgement and not going by 3rd party reports.

So doing a google search I downloaded, printed and studied the judgement and here is my analysis and opinion.
The judgement can be accessed here:

An excellent summary is here

This  write-up gives  a very good understanding but maybe a bit technical so my  layman’s analysis meant for fellow laymen. Much of the information is got from the above site which incidentally is also a very informative site on law in general.

The facts/history:
1)      This is not a judgement but an interim order.
2)      One Mr. SHYAM NARAYAN CHOUKSEY  a  [sic] Public Spirited person on 28th October 2016  filed a writ petition before the supreme court. The basic request  which this  public spirited person had to the court  was “take appropriate steps to specify what would be constituting disrespect and abuse of the National Anthem. In the petition, reference has been made to Prevention of Insults to National Honour Act, 1971. It is averred in the petition that sometimes the National Anthem is sung in various circumstances which are not permissible and cannot be legally countenanced regard being had to the national honour.”
3)      The petition contained some “suggestions” to be followed.
4)      The court posted this case for hearing for 30th Nov.
5)      The court passed an interim order on 30th November. Highlights of the order are:
a.       There will be no commercial benefit from the national anthem
b.      There can be no “dramatization” of the anthem.
c.       National Anthem cannot be printed on any object
d.      All cinema halls will play the national anthem before the start of any movie
e.      The doors to the hall will be locked during this playing so that no one can create any disturbance.
f.        The national flag should be shown on the screen during this playing
g.       ….

The court felt that among other things:
[sic]The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National 4 Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.

The order goes on to state with some reasoning in-between:

“Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible.”

 The above are all factual Here are my comments in no specific order:

1)      If you can understand the last sentence, please enlighten me. I have read it a couple of times and don’t understand what this means. I might be wrong, but it seems to me  that the learned lordships state that individual rights have no place. Hopefully I am wrong.
2)      The judgment seems to have accepted all the suggestions of the petitioner. There  is no logic as to why this applies only to cinemas and not to any other place and also asks the question if citizens can start making their own laws by filing a public interest litigation and requesting the courts to accept the same
3)      Someone has since requested  modification of this order to include singing of the national anthem in courts which has been rejected on technical grounds and a statement to not take the judgement too far [HAHA].
4)      This gets  a bit interesting.  There seems to have been a similar case filed in Bhopal against the move Kabhi Khushi Khabi Gham  before (hold your breath) the same judge who had ordered a stay on the film on account of the national anthem being played in the film. Details here (Warning: A lot of “learned” and “honourable” people are mentioned in this document and it is not light reading. I gave up after 2 pages).  This judgement was subsequently quashed by the supreme court  So part of this new judgement about not allowing dramatization of the national anthem is an old story which was found to be not in order and it seems it being reopened.

Some thoughts:

1)      This is one more example of judicial activism which I had written about earlier and which seems to getting more and more dangerous with time. The courts seem to be wanting to take over legislative functions.
2)      It is shocking that the government along with various politicians seems to be supporting this order. This is a complete abdication of their duties. 
3)      As a citizen of this country, I am shocked that the highest court of this country spends time listening to such issues.  As per my understanding the role of the supreme court is to adjudicate largely on constitutional issues and ensure that fundamental rights of citizens are not violated. The constitution of India guarantees me the freedom of speech and expression within reason and this judgement seems to say the opposite. I just hope my understanding is wrong

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