SHYAM NARAYAN CHOUKSEY V. UNION OF INDIA

BY SHRIYANSHI[1]

IN THE SUPREME COURT OF INDIA

NAME OF THE CASESHYAM NARAYAN CHOUKSEY V. UNION OF INDIA
CITATIONWrit Petition (Civil) No. 855 of 2016
DATE OF THE JUDGEMENTDecember 9, 2018
APPELLATEShyam Narayan Chouksey
RESPONDENTUnion of India
BENCH/ JUDGEDipak Misra, A.M. Khanwilkar and D.Y. Chandrachud
CONSTITUTION/STATUTES INVOLVEDConstitution of India; Prevention of Insults to National Honor Act, 1971
IMPORTANT SECTIONS INVLOVEDConstitution of India: Article 32 and 51-A(a)   Prevention of Insults to National Honor Act, 1971: Sections 2 and 3

ABSTRACT

A writ petition (writ of mandamus) filed under Article 32 of the Constitution of India by Shyam Narayan Chouksey begs of the Supreme Court to issue certain directions for the appropriate time to play and sing the National Anthem of India as many times, it is played at insignificant places which reduces the sanctity of the National Anthem.

INTRODUCTION

“India believes in peace and harmony; India lives by National Integration”, these lines by Indira Gandhi proves the fact that integrity is the only thing from which a nation derives its strength and its valor.

The National Anthem of our country, Jan Gana Mana, was originally written down as “Bharoto Bhagyo Bidhata” in Bengali by the Nobel Laureate Rabindranath Tagore, it was the first stanza that was officially adopted by the Constituent Assembly on 24 January, 1950. It was sung on the midnight of India’s independence when the session was closed. It takes approximately 52 seconds when sung and is itself an emotion. It conveys the message of pluralism or Unity in Diversity which forms the core of India’s National Heritage.

The provisions in the law related to the National Anthem have been provided in the Fundamental Rights of 51-A(a) of the Constitution of India.

There have been controversies surrounding the song that it was written in praise of the British King but it was dismissed and it was first sung during the session of the Indian National Congress in Calcutta.

The Anthem has the sentiments of nationalism and patriotism linked with itself, it “is understood unequivocally throughout India and thus brings forth the spirit of unity among these diverse languages.”[2]

Fundamental rights mentioned in Part III of the Constitution of India run from Article 12 to Article 35. One such article is Article 32 of the Constitution of India which is termed as Right to Constitutional Remedies and is popularly known as the “Heart and Soul of the Constitution” It is a right that is bestowed upon the citizens of India by the framers of the Constitution that help them in the enforcement of their fundamental rights. Thus, the Supreme Court is called the protector and guarantor of fundamental rights.

Fundamental rights can be enforced if violated by the issuance of writs under Article 32 for the Supreme Court and Article 226 for the High Court. A writ is a written legal order from the Supreme Court that is issued when there is a violation or infringement of the fundamental right of an Indian citizen, the court orders to do or not to do a thing. There are five writs issued by the court- Habeus Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition.

  • A writ of Habeus Corpus is issued when the court orders any person whether private or public authority to present the person arrested in front of the court, i.e., “to have the body of.” It checks whether there has been lawful detention and makes the body free if there is no legal justification for imprisonment. Hence, it secures the body of a person who has been unlawfully detained.
  • A writ of Mandamus, literally means that “we command”, this writ cannot be issued against a private individual. In this writ, the court orders the authorities to perform their task or resume their work (public or quasi-public legal duty) which he has refused to perform.
  • A writ of Certiorari means “to be informed of”, it is issued by a superior court to a inferior court or tribunal that orders them to either transfer a case or quash the order given by them in a case and it cannot be issued against private individuals.
  • A writ of Quo Warranto means “by what authority”, it cannot be issued against private individuals or ministerial office, the crux of this writ is that an unlawful claimant does not benefit from the public office, the person is not entitled to hold it. Hence, the court issues this writ to safeguard against this illegal usurpation.
  • A writ of Prohibition literally means “to forbid”, it is also issued from a court higher in authority to a court lower in authority to stop them from continuing the proceedings. Therefore, it is issued when the inferior courts act in excess of their jurisdiction. This writ can only be initiated against the judicial and quasi- judicial authorities.

FACTS OF THE CASE

Shyam Narayan Chouksey, a retired Chief Engineer from the Central Warehousing Corporation back then in 2000, decided to move to the High Court of Madhya Pradesh with a Public Interest Litigation. The disturbing sight in the cinema hall made him file the PIL, it was back when he went to watch the iconic movie “Kabhi Khushi Kabhi Gam” and the scene of the national anthem of the country is displayed on the screen, he being a nationalist and a patriotic person stood up in respect of the anthem and people in the hall started rebuking him for obstructing their view instead of appreciating him and joining him. This did hurt Chouksey and he moved to the High Court where a division bench agreed with him and halted the screening of the film across India. Though the halt was lifted later, Chouksey did not stop here and moved to the Supreme Court under Article 32 with a petition of disrespect shown to the national anthem and its commercial usage in the film.

He sought from the court to issue directions when the National Anthem is sung or played and the necessary requisites that arise thereof.

On 28.10.2016, the court looked into the matter and discussed that the petitioner begs for the issuance of the writ of mandamus and in the petition, the petitioner also made some suggestions regarding the National Anthem and its sanctity.

Two applications were filed that sought for impleadment and recall of the interim order passed on 30.11.2016. “They were taken up on 9th December, 2016, and on that day, the prayer for impleadment was allowed, but as far as the application for recall was concerned, the Court passed the following order: –

―As far as the recall of the order is concerned, the same has to be heard on merits when the matter is finally debated upon. Be it noted, Mr. Dinesh, learned counsel for the applicant at the time of mentioning had submitted 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.”[3]

ISSUES RAISED BEFORE THE COURT

  1. What amounts to disrespect and abuse of the National Anthem?
  2. Is it necessary for everyone to stand up and show respect while the National Anthem is being played?
  3. Can the physically handicapped people be exempted from singing National Anthem?

ARGUMENTS RAISED BY THE PETITIONERS SIDE

  • The learned counsel appealed to the court referring to the Prevention of Insults to National Honour Act, 1971 about the times when National Anthem is sung in non-permittable circumstances.
  • The counsel referred to two examples, firstly during an interview, the National Anthem was played to examine the behavioural pattern of the candidate, therefore it was contended that National Anthem cannot be played in a surprise way. Secondly, it was argued that it is played to dramatize the variety show.
  • The counsel suggested to the court that there should be no commercial exploitation of the National Anthem, there should be no interruption while it is sung, no dramatization of the song, not be played in front of people who are unaware of the dignity it holds and not be printed on undesirable objects that would contribute to its disrespect.
  • It was appealed by the counsel that directions should be issued to play National Anthem before featuring any film on screen and there should be proper protocols with strict vigilance of authorities.
  • Thus, it was finally contended that National Anthem should be revered and respected across the Indian subcontinent.

ARGUMENTS FROM THE RESPONDENTS SIDE

  • The learned counsel for the respondent submitted with all humility that National Anthem should be respected.
  • He further submitted that directions should be issued for love and respect is expressed to motherland when people proclaim it by respecting the National Anthem as well as National Flag.
  • Adding on, he submitted that it would engender the feeling of nationalism and patriotism.
  • Apart from other submissions, it was contended that the physically handicapped persons cannot stand and sing the Anthem so, they should be exempted as the reference was made to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
  • It was also contended that the people are not expected to stand up and sing the Anthem if it is a part of the storyline of the film or newsreel or documentary.
  • It was also appealed that playing of National Anthem should be made optional and not mandatory.
  • Hence, it was contended that India is a country of diversity and it is a necessity to sing the National Anthem to bring about the uniformity and feeling of being an Indian.

RELEVANT PROVISIONS

CONSTITUTION OF INDIA, 1949

  • ARTICLE 32:

 Remedies for enforcement of rights conferred by this Part

  1.  The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed[4]
  2.  The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part[5]
  3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )[6]
  4.  The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[7]
  • ARTICLE 51-A(a):

51A. Fundamental duties It shall be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem[8]

PREVENTION OF INSULTS TO NATIONAL HONOR ACT, 1971

  • SECTION 2:

“Insult to Indian National Flag and Constitution of India. – Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or *otherwise shows disrespect to or brings into flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.”[9]

  • SECTION 3:

“Prevention of singing of Indian National Anthem, etc.—Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance 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.”[10]

JUDGEMENT

The honourable court patiently listened to both the parties as due respect was given to the singing of the National Anthem and various suggestions were made from the petitioners as well as the respondents. The court by its ruling on 30.11.2016, had passed interim orders which the court ordered should be followed conscientiously, that, there should be no commercial usage of the National Anthem, no dramatization of the Anthem as would amount to disrespect, it should not be printed or displayed on any object on any such place as it is associated with national identity roots, it should be played before the start of the film and all would be under obligation to show respect, in the cinema while the song is played, the doors should be closed so that no creates any hindrance and once the motion has been moved, the doors should be opened, (the court clarified in this view that it does not mean to bolt the doors as was held in MCD V. Uphaar Tragedy Victims Assn.[11] but only for regulation of entry and exit while it is played) there should be National Flag on the screen when the Anthem is played and no abridged version should be played.

The court also referred to the Fundamental Duty as enlisted in Article 51- A, it becomes obligatory and mandatory for everyone to respect the National Anthem and the National Flag. The court further clarified that if any specially disabled person and physically handicapped person (referring to the persons defined under sections 2(i) and 2(t) of the Persons with Disabilities (Equal Opportunities, Protection, Protection of Rights and Full Participation) Act, 1995) visits the cinema hall, he must not stand up but “must show such conduct which is commensurate with respect for the National Anthem.”

The court exempted these categories such as “the persons who are wheel chair users, those with autism, persons suffering from cerebral palsy, multiple disabilities, Parkinson’s, multiple sclerosis, leprosy cured, muscular dystrophy and deaf and blind” from the order passed on 30.11.2016[12].

The court referred to Union of India V. Naveen Jindal[13], wherein it was stated that the Preamble of the Constitution of India ‘is meant for integration of the diverse communities” and  was recognized in the present case while the matter was being considered in relation with the Flag Code: “Then the question arises, which view is to be accepted. National Anthem, National Flag and National Song are secular symbols of the nationhood. They represent the supreme collective expression of commitment and loyalty to the nation as well as patriotism for the Country. They are necessary adjuncts of sovereignty being symbols and actions associated therewith.”

The court cleared itself on three points that National Anthem is a respect to the motherland, no proper listing can be made as to when it can be permitted and it can be sung in mass with proper decorum. It was further found necessary to refer to the case of Bijoe Emmanuel v. State of Kerela[14] wherein the judges focussed on the respect of the National Anthem when it is being played or sung.

The court found that the fundamental duties make everyone respect the National Anthem whenever it is played but the ‘prescription of the place’ was left on the shoulders of the executive to decide. Thus, the writ petition was disposed of with the following directions, the committee formed by the Union Government should submit its recommendation to the authority and it should look into all the aspects being influenced by the interim orders passed by this Court, the citizens of the country have to show respect whenever the National Anthem of India is sung or played.

CONCLUSION

India is a country of multicultural people and it believes in Unity in Diversity. Integrity cannot be achieved unless one is willing to give respect to the National Symbols such as the National Anthem and the National Flag. Patriotism towards one’s country cannot be forced or enforced by any law or rule, it comes from one’s inner conscience and the National Anthem is that source that once played takes us back and reminds us of the days of struggle that our freedom fighters had to surpass achieve this fate, it is our duty to revere it and abide by the directions issued by this Court. Sardar Vallabh Bhai Patel said, “Every citizen of India must remember that…he is an Indian and he has every right in this country but with certain…. duties.”

[1] Author is 3rd Semester student of Amity Law School, Lucknow.

[2] Cultural India, https://www.culturalindia.net/national-symbols/anthem.html (last visited Jul.15, 2022).

[3] INDIAN KANOON, https://indiankanoon.org/doc/81046706/ (last visited Jul. 15, 2022).

[4] INDIA CONST. art. 32, cl.1.

[5] INDIA CONST. art 32, cl.2

[6] INDIA CONST. art. 32, cl.3.

[7] INDIA CONST. art. 32, cl.4.

[8] INDIA CONST. art. 51, cl.1(a).

[9] The Prevention of Insults to National Honor Act, 1971, §2, No. 69, Acts of Parliament (India).

[10] The Prevention of Insults to National Honor Act, 1971, §3, No. 69, Acts of Parliament (India).

[11] MCD V. Uphaar Tragedy Victims Assn., (2011) 14 SCC 481.

[12] Shyam Narayan Chouksey V. Union of India, (2017) 1 SCC 421.

[13] Union of India V. Naveen Jindal, (2004) 2 SCC 510.

[14] Bijoe Emmanuel V. State of Kerela, (1986) 3 SCC 615.

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