The Supreme Court ruling that mandates the national anthem to be played at cinema halls has created quite the stir. In response to petition by Shyam Narayan Chouksey, a Bhopal based social activist, a bench comprising Justice Dipak Misra and Amitava Roy ruled –
All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.
Prior to the National Anthem is played or sung in the cinema hall, the entry and exit doors shall remain closed so that no one create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.
The interim order available here in full, also includes other guidelines prohibiting the use of the anthem for commercial purposes. Spelling out the motivation for their order, the judges say
The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.
The petitioner, Chouskey is a retired engineer from the Central Warehousing Corporation and in 2000 began his social work with an NGO called Rashtrahit Gandhiwadi Manch. According to this article in The Indian Express, most of his work involves litigating on issues of the national anthem or the flag. He has been quoted as saying that this fight began when he went to watch the hindi movie, Khabi Kushi Khabi Gham–
When the national anthem was being played in the movie, I stood up. But I was the only person standing. Those behind me said that I was obstructing their view — instead of standing up they asked me to sit down. It hurt me
It even prompted him to take the filmmakers to the Madhya Pradesh High Court asking for the scene to be deleted. Interestingly, Justice Dipak Misra, who has delivered the orders in the latest Supreme Court judgement, was part of the bench who ruled in favour of deleting the scene. This order was later stayed.
quoted the National Secretary Shrikanth Sharma as saying –
BJP welcomes this order and commend the court for this. It will strengthen the spirit of nationalism. National anthem and tri-colour unite us as a nation and this unity will be further strengthened.
The spokesperson Nalin Kohli also echoed these sentiments and said that the order is welcome given that many controversies have been occurring off late where people do not stand up for the national anthem.
The Congress too has come out in support of the ruling. The First Post quotes Abhiskek Manu Singhvi-
The 130-year-old party has seen the bigger independence movement. Therefore, we have strongly supported all aspects of genuine nationalism. We support, in principle, everything that enhances the respect and dignity of this nation. Therefore, we support this in principle
Surprised at criticism of SC ruling on#nationalanthem.If Indians will not stand in respect for their own anthem who else will- the Paki's?— Manish Tewari (@ManishTewari) December 1, 2016
But what are the ramifications of this judgement? Lawrence Liang, a legal scholar, compares the 1987 Bijoe Emanuel Supreme Court judgement with the present order in this article in The Business Standard. The earlier case related to the suspension of three students in a Kerala school who were suspended for refusing to sing the national anthem as they were Jehovah’s witnesses. At that time, the court overturned their suspension saying that the right to remain silent was a part of the freedom of speech and expression guaranteed under the Indian constitution. However about the present case, Liang says –
Some "Liberals" want all the privileges of being Indian but no duties/responsibilities.#NationalAnthem— Manak Gupta (@manakgupta) November 30, 2016
In a case that pits compulsory affection against the beliefs of a group, the judges hold in favour of the latter and locate their decision within the right to freedom of speech and expression. The consequences of this judgment are extremely significant, particularly at a time when the executive is hell-bent on criminalising any form of dissent, and Bijoe Emanuel is one of the few safe spaces in which conscientious objectors in India could potentially have found safe refuge.
Calling it the symptom of a larger trend, he cites the example of the Judge who granted JNU student union leader Kanhiya Kumar bail, but also gave him a moral lecture in patriotism.
However, even in case of the Bijoe Emmanuel judgement, the judge specified that the fact that the students stood up, although they refused to sing the anthem, absolved them to a certain extent.
Debates on free speech often focus on the speech element ignoring the expression element, but if the right to free speech includes the right to remain silent then would not a free expression include a non action?
In support of this argument, Lian quotes Section 3 of the Prevention of Insults to National Honours Act which says “Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances 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.”So would a quiet and peaceful refusal to stand during the anthem constitute disturbance?
Gautam Bhatia, another legal expert also questions the Supreme Court ruling and calls it a case of judicial censorship. He offers a detailed legal analysis here and concludes -
By engaging in direct judicial censorship, the Court short-circuits this crucial two-step safeguard, and bypasses Parliament altogether. By directly restricting speech, it ensures that the deliberative process envisaged by the Constitution when it requires the State to “make a law” under Article 19(2) is rendered chimerical. This is why such judicial action violates the separation of powers.
In the Huffington Post, Shivam Vij also raises some important questions about the necessity to play the anthem before a movie. Vij contends that the usual practice of playing the anthem at sporting events or at diplomatic events makes logical sense.
Just why are we required to pay respect to the nation before watching a movie? It's as logical as asking to play the national anthem before eating at a restaurant, or every morning before entering the office, or at every toll booth on the highways. Just why?
But he too says that there is risk in forcing and enforcing nationalism and patriotism.
In Goa in October this year, writer Salil Chaturvedi didn't stand up for the national anthem. He was assaulted by a couple from behind. The guardians of nationalism who beat him didn't know he suffered from a spinal injury that prevented him from rising on his feet. Chaturvedi is an award-winning disability rights activist.
Just like Gau Rakshaks, will now emerge another cult: Rashtra Gaan Rakshaks. #NationalAnthem— Shirish Kunder (@ShirishKunder) November 30, 2016
Bharadwaj Rangan’s piece in The Hindu also elaborates the absurdity of the ruling. Rangan calls movies a soft target for tokenistic measures, pointing out that a mere statutory warning in the screen is not the way to get people to stop smoking.
How will SC enforce its #NationalAnthem order? By ordering a cop in every show, or simply crowd-sourcing it to self-appointed vigilantes?— Shekhar Gupta (@ShekharGupta) November 30, 2016
To expect “pride” from a ticket buyer who wants nothing more than to forget his troubles with overpriced popcorn and soda, and a mindless movie, is even more of a pipe dream. One could make the case that we are, in fact, disrespecting the anthem by associating it with a medium that — nine times out of ten — makes no bones about being “commercial”. In other words, after standing up for the anthem, you’re going to be sitting down for a cleavage-popping item number.
The serious questions are a-plenty as the case will be heard again in February next year. But in the meanwhile there is thankfully some comic relief.
I always thought "Vicco Turmeric, nahi cosmetic" was our national anthem which is why it played before every movie.— Aditi Mittal (@awryaditi) November 30, 2016
#NationalAnthem ruling is a good initiative towards patriotism. The movie BORDER should also be compulsory before every movie screening.— Shirish Kunder (@ShirishKunder) November 30, 2016
When you are driving/riding but somebody plays National Anthem pic.twitter.com/29w2BzgqTD— Aakash (@PUNchayati) November 30, 2016
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