Supreme Court of India
SHYAM NARAYAN CHOUKSEYversusUNION OF INDIA & OTHERS
- Citation
- 2018 INSC 14
- Decided
- 9 January 2018
- Disposal
- Disposed off
- Bench
- DIPAK MISRA
Holding
The Court modified its interim order, holding that playing the National Anthem in cinema halls is optional/directorial, not mandatory, and the committee’s recommendations shall be made independently of the Court’s interim directions.
Summary
Shyam Narayan Chouksey filed a writ petition under Article 32 seeking directions to ensure public respect for the National Anthem, including a mandatory requirement that all cinema halls play the anthem before feature films and that audiences stand. The Supreme Court’s interim order of 30 November 2016 imposed such directions, but subsequent applications raised concerns for physically disabled persons. The Union Government constituted an inter‑ministerial committee (notification 5 December 2017) to examine all aspects, including possible amendment of the Prevention of Insults to National Honour Act, 1971. The Court held that, pending the committee’s recommendations, the earlier mandatory direction should be modified: playing the anthem in cinema halls is optional or directory, not compulsory, and the committee’s recommendations must be made uninfluenced by the Court’s interim orders. The exemption for disabled persons remains in force until a final decision, and the petition was disposed of.
Issues considered
- Whether the Supreme Court can issue a mandatory direction for playing the National Anthem in cinema halls absent specific legislation.
- Whether the Prevention of Insults to National Honour Act, 1971, and Article 51A(a) of the Constitution impose a duty to stand for the anthem.
- Whether an exemption for physically disabled persons is required when the anthem is played.
- Whether the interim order should remain mandatory or be modified pending the inter‑ministerial committee’s recommendations.
Legislation cited
Subjects
National Anthemcinema hallsmandatory directiondisability exemptionPrevention of Insults to National Honour ActArticle 32Article 51A(a)inter‑ministerial committeeinterim order modification
Judgment
[2018] 1 S.C.R. 1147 1147
SHYAM NARAYAN CHOUKSEY A
v.
UNION OF INDIA & OTHERS
(Writ Petition (Civil) No.855 of 2016)
JANUARY 09, 2018 B
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
National Anthem/National Flag – Constitution of India –
Art.32 – Petitioner, a public spirited person, sought direction
C
commanding the respondents to take appropriate steps for
inculcating in the public a proper sense for paying due respect to
the National Anthem – On 30 th November, 2016, Supreme Court
passed interim order, inter alia, directing that all cinema Halls shall
play the National Anthem before the feature film starts and all present
in the hall to oblige and stand up to show respect to the National D
Anthem – Later, the Court passed another order advising Central
Government to bring out requisite notification or circular or rules
in this regard – In pursuant thereto, State constituted a Committee
by the Notification dated 5 th December, 2017 to look into every
aspect including the amendment to the Prevention of Insults to
E
National Honour Act, 1971 and to formulate executive instructions
– State contended that till the Committee is looking into the matter,
the mandatory order passed by the Court regarding playing of
National Anthem in cinema Halls may be modified by making it
directory – Held: The Committee appointed by the Central/Union
Government shall submit its recommendations to the competent F
authority in terms of the Notification dated 5th December, 2017, for
follow up action – The order passed on 30 th November, 2016,
modified to the extent that playing of the National Anthem prior to
the screening of feature films in cinema halls is not mandatory, but
optional or directory – Since the Committee constituted by the Union
G
government is looking into all aspects of the matter, it shall make its
recommendations uninfluenced by the interim directions of Supreme
Court – Similarly, the competent authority shall in taking its
decision(s) not be constrained or influenced by any of the interim
directions – Prevention of Insults to National Honour Act, 1971 Act
– ss. 2 and 3 – Public Interest Litigation H
1147
1148 SUPREME COURT REPORTS [2018] 1 S.C.R.
A National Anthem/National Flag – Constitution of India –
Art.32 – Petitioner, a public spirited person, sought direction
commanding the respondents to take appropriate steps for
inculcating in the public a proper sense for paying due respect to
the National Anthem – On 30 th November, 2016, Supreme Court
passed interim order, inter alia, directing that all cinema Halls shall
B
play the National Anthem before the feature film starts and all present
in the hall to oblige and stand up to show respect to the National
Anthem – Interlocutory applications filed, which related to the
difficulties faced by the disabled persons – Applicants contended
that there has to be some kind of exemption for physically challenged
C persons or physically handicapped persons – State constituted a
Committee by the Notification dated 5 th December, 2017 to look
into every aspect including the amendment to the Prevention of
Insults to National Honour Act, 1971 Act and to formulate executive
instructions – The orders were modified, physically challenged
persons or physically handicapped persons exempted from the ambit
D
of the orders – Held: The exemption granted to disabled persons to
remain in force till the final decision of the competent authority
with regard to each occasion whenever the National Anthem played
or sung – Rights of Persons with Disabilities Act, 2016 – Public
Interest Litigation.
E Constitution of India – Art. 51A(a) – Citizens or persons are
bound to show respect as required under executive orders relating
to the National Anthem of India and the prevailing law, whenever it
is played or sung on specified occasions.
Disposing of the writ petition, the Court
F
HELD : 1. On a perusal of the s.3 of the Prevention of
Insults to National Honour Act, 1971, it is clear that 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
G with playing of the anthem, mass singing of the anthem, playing
of foreign anthems and general provisions. [Para 24] [1160-C-D]
2. On a careful reading of the s.3, it is clear that the said
Order states that it is not possible to give an exhaustive list of
the occasions. It further lays down that there is no objection to
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SHYAM NARAYAN CHOUKSEY v. UNION OF INDIA 1149
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the singing of the National Anthem accompanied by mass singing A
so long as it is done with due respect as a salutation to the
motherland and maintenance of the proper decorum. Thus, three
aspects are obvious: First the National Anthem is not only to be
respected, but it is a respect as a salutation to the motherland;
second, the list of occasions cannot be exhaustively stated; and,
B
third, proper decorum has to be maintained when the National
Anthem is played or sung. [Para 25] [1160-F-G]
3. There is no shadow of doubt 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 prescription of the C
place or occasion has to be made by the executive keeping in
view the concept of fundamental duties provided under the
Constitution and the law. [Para 30] [1162-H; 1163-A]
Bijoe Emmanuel and Others v. State of Kerala and
Others AIR 1987 SC 748 : [1986] 3 SCR 518 – relied D
on.
Union of India v. Naveen Jindal and Another (2004) 2
SCC 510 : [2004] 1 SCR 1038 – referred to.
Case Law Reference E
[2004] 1 SCR 1038 referred to Para 15
[1986] 3 SCR 518 relied on Para 28
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 855
of 2016.
F
Under Article 32 of the Constitution of India.
K. K. Venugopal, AG, Shiv Mangal Sharma, AAG, Saurabh Shyam
Shamshery, AAG, Sidharth Luthra, Sr. Adv(AC), C.U. Singh,
Sr. Adv, Ms. Tara Narula, Ms. Gargi Khanna, Tushar Gupta, Vaibhav,
Abhinav Shrivastava, Harmeet Singh Ruprah, Ms. Priyanka Garg, R. P. G
Singh, Ritunender Singh, Prateek Jalan, Ms. Binu Tamta, Ankit Yadav,
Rahul Kriplani, Pranay Ranjan, Rajat Nair, M. K. Maroria, Arijit Prasad,
Ankur Talwar, B. V. Balaram Das, B. Krishna Prasad, A. Subba Rao, P.
V. Dinesh, Ms. Sindhu T. P., Bineesh K., R. Beniwal, Ms. Arushi Singh,
Namit Saxena, Ms. Prachi Priyadarshni, Amit Sharma, Sandeep Singh,
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1150 SUPREME COURT REPORTS [2018] 1 S.C.R.
A Ankit Raj, Ms. Indira Bhakar, Ms. Ruchi Kohli, Nishant Ramakantrao
Katneshwarkar, Arpit Rai, Biju P Raman, Mrs. Nanita Sharma,
V. Sharma, Bajrang Laljat, Ms. Aarohi Bhalla, Ms. Sujata Kurdukar, Ajit
Pathak, V. K. Biju, Advs for the appearing parties.
The Judgment of the Court was delivered by
B DIPAK MISRA, CJI. 1. The petitioner, a public spirited person,
has approached this Court under Article 32 of the Constitution of India
for issue of a writ of mandamus or any other appropriate writ, order or
direction commanding the respondents to take appropriate steps for
inculcating in the public a proper sense for paying due respect to the
C National Anthem; to issue a writ, order or direction as to what is required
to be done and not to be done when the National Anthem is being played
or sung; to specify what will constitute disrespect and abuse of the
National Anthem; and to restrain the use of the National Anthem for any
commercial exploitation or to gain financial advantage in any manner.
D 2. Apart from the aforesaid prayers, there are many other prayers
and one such prayer includes that no one should print the National Anthem
on any undesirable object or display it in a manner and at such places
which may be disgraceful and may tantamount to showing disrespect to
the National Anthem.
E 3. After issue of notice, learned Attorney General for India entered
appearance. On 30th November, 2016, taking note of the assertions made
in the petition, this Court had passed an interim order, which reads thus:-
“Having heard the learned counsel for the parties and awaiting
the reply from the Union of India, as an interim measure, it is
F directed that the following directions shall be scrupulously
followed:-
(a) There shall be no commercial exploitation to give financial
advantage or any kind of benefit. To elaborate, the National
Anthem should not be utilized by which the person involved with
it either directly or indirectly shall have any commercial benefit or
G
any other benefit.
(b) There shall not be dramatization of the National Anthem and it
should not be included as a part of any variety show. It is because
when the National Anthem is sung or played it is imperative on
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SHYAM NARAYAN CHOUKSEY v. UNION OF INDIA 1151
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the part of every one present to show due respect and honour. To A
think of a dramatized exhibition of the National Anthem is absolutely
inconceivable.
(c) National Anthem or a part of it shall not be printed on any
object and also never be displayed in such a manner at such places
which 3 may be disgraceful to its status and tantamount to B
disrespect. It is because when the National Anthem is sung, the
concept of protocol associated with it has its inherent roots in
National identity, National integrity and Constitutional Patriotism.
(d) All the cinema halls in India shall play the National Anthem
before the feature film starts and all present in the hall are obliged C
to stand up to show respect to the National Anthem.
(e) Prior to the National Anthem is played or sung in the cinema
hall on the screen, the entry and exit doors shall remain closed so
that no one can create any kind of disturbance which will amount
to disrespect to the National Anthem. After the National Anthem D
is played or sung, the doors can be opened.
(f) When the National Anthem shall be played in the Cinema Halls,
it shall be with the National Flag on the screen.
(g) The abridge version of the National Anthem made by any one
for whatever reason shall not be played or displayed.” E
4. After issuing the directions, this Court noted the submissions of
the learned Attorney General which were to the following effect:-
“We have so directed as Mr. Mukul Rohtagi, learned Attorney
General for India submits with all humility at his command and
F
recommend that National Anthem has to be respected. 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.”
5. Thereafter, as the factual matrix would unfurl, two applications G
were filed seeking impleadment and recall of the interim order. 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:-
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1152 SUPREME COURT REPORTS [2018] 1 S.C.R.
A “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
B
who was present in Court has referred to the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995.
Mr. Rohatgi, learned Attorney General for India submitted
that how the physically challenged or physically handicapped
C persons shall show respect to the National Anthem, the Central
Government will issue guidelines within ten days hence. As the
guidelines are going to be issued, we clarify, if a physically
challenged person or physically handicapped person goes to the
Cinema hall to watch a film, he need not stand up, if he is incapable
D to stand, but must show such conduct which is commensurate
with respect for the National Anthem. When we say physically
challenged or physically 3 handicapped persons, it means persons
with disability as defined under Sections 2(i) and 2(t) of the Persons
with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995. Another aspect needs to be cleared.
E When we said that the doors shall be closed, we did not mean that
the doors shall be bolted as mentioned in the case of Municipal
Corporation of Delhi, Delhi vs. Uphaar Tragedy Victims
Association and Ors. [(2011) 14 SCC 481] but only to regulate
the ingress and egress during the period while the National Anthem
F is played.”
6. On the next date of hearing i.e. 14th February, 2017, certain
interlocutory applications were filed, which related to the difficulties faced
by the disabled persons. Mr. Sidharth Luthra, learned senior counsel,
who was appointed as the friend of the Court, had highlighted certain
G aspects and taking note of the same, the following order was passed:-
“Mr. Siddharth Luthra, 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.
H Mr. Rohatgi, learned Attorney General accepted the said suggestion.
SHYAM NARAYAN CHOUKSEY v. UNION OF INDIA 1153
& OTHERS [DIPAK MISRA, CJI]
In view of the aforesaid, it is clarified that when the National A
Anthem is sung or played in the storyline of a feature film or par
of the newsreel or documentary, apart from what has been stated
in the order dated 30.11.2016, the audience need not stand.
At this juncture, we may state that the Parliament has brought
a new legislation called ’The Rights of Persons with Disabilities B
Act, 2016. Section 102 repeals ‘The Persons with Disabilities
(Equal Opportunity Protection of Rights and Full Participation)
Act, 1995. This Court on 9.12.2016 has modified the earlier order
regard being had to the handicapped persons keeping in view the
1995 Act. On a query being made, Mr. Mukul Rohatgi, learned C
Attorney General for India submitted that the Union of India shall
issue an appropriate notification/guidelines in view of the language
employed in the Rights of Persons with Disabilities Act, 2016.
The said notification/guidelines may be issued within a week hence.
Mr. Subhash Chandran, learned counsel submits that he may D
be permitted to file an application for intervention on behalf of the
National Platform for the Rights of the Disabled. He is at liberty
to file the application.”
7. On 18th April, 2017, dealing with I.A. No.15 of 2017, which
also related to disabled persons, certain modifications were made. The E
said order is as follows:-
“This is an application filed by the NPRD to direct the respondent
No.1 to exempt certain categories of disabled persons from the
purview of the order of this Court dated 30th November, 2016
F
and 9th December, 2016. The categories of persons mentioned
are:-
(i) Wheel chair users – can be cerebral palsy, Parkinsons, Multiple
sclerosis, Muscular dystrophy or other conditions
G
(ii) Those with autism
(iii) Those with cerebral palsy
(iv) Intellectual disabilities
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1154 SUPREME COURT REPORTS [2018] 1 S.C.R.
A (v) Mental illness
(vi) Deaf blind
(vii) Multiple disabilities
B (viii) Parkinsons, Multiple sclerosis
(ix) Leprosy cured
(x) Muscular dystrophy
C Having heard learned counsel for the parties, we are inclined
to modify the orders and direct that the persons who are wheel
chair users, those with autism, persons suffering from cerebral
palsy, multiple disabilities, parkinsons, multiple sclerosis, leprosy
cured, muscular dystrophy and deaf and blind be treated not to be
within the ambit of the orders passed by this Court.
D
As far as the other categories, which we have not referred
to mentioned in the application, are concerned, the same may be
considered by the Union of India.”
8. On the previous occasion i.e. 23rd October, 2017, having heard
E
learned counsel for the parties and the learned Attorney General for
India, the following order came to be passed:-
“The submission of the learned Attorney General is that because
of the vast diversity in the country based on religion, race, caste
F and even region, it becomes necessary to have uniformity which
should be cultivated by playing the National Anthem so that when
people come out from the cinema halls, instilling the belief that
they are all Indians. Be that as it may. In this context, he has
referred to Article 51A(a) of the Constitution of India.
G Having heard learned counsel for the parties for some time,
we think it appropriate that the Central WP(C) 855/16 4
Government should take a call in this regard and, if necessary, as
advised, may bring out the requisite notification or circular or rules.
When we say ‘take a call’, needless to say, the discretion rests
H
SHYAM NARAYAN CHOUKSEY v. UNION OF INDIA 1155
& OTHERS [DIPAK MISRA, CJI]
with the Central Government. The discretion has to be exercised A
without being influenced by our interim order. We may further
emphasize that the discretion may be utilized to regulate in an
inclusive manner or as the Central Government feels fit.”
9. In pursuance of our earlier order, an affidavit has been filed by
the Union of India. It is submitted by Mr. K.K. Venugopal, learned B
Attorney General that the Central Government has constituted a
Committee by a Notification/Order dated 5th December, 2017. We shall
refer to the same at a later stage.
10. Mr. Abhinav Shrivastava, learned counsel appearing for the C
petitioner has raised the following contentions:-
(a) The Prevention of Insults to National Honour Act, 1971 (for
short, ‘the 1971 Act’) vide Section 3 only deals with prevention
of singing/playing of National Anthem, etc., but it does not
deal fully as to how the respect is to be shown and, therefore, D
appropriate measures should be prescribed by law in that
regard.
(b) Article 51A(a) of the Constitution which provides that every
citizen of India is to abide by the Constitution and respect its
ideals and institutions, the National Flag and the National E
Anthem, warrants that 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
F
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 G
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,
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1156 SUPREME COURT REPORTS [2018] 1 S.C.R.
A therefore, there has to be an appropriate law in the field and
in the absence of law, this Court may issue directions till the
law is brought covering the said aspects.
11. Mr. K.K. Venugopal, learned Attorney General, referring to
the affidavit and the Notification/Order would contend that the Committee
B constituted by the Notification shall look into every aspect including the
amendment to the 1971 Act and formulation of further executive
instructions and till then 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. The suggestion
C given by him is that the word “shall” used in the order be substituted by
“may”.
12. Mr. Sidharth Luthra, learned Amicus Curiae, has submitted
that Article 51A of the Constitution has been brought when the 1971 Act
was in force and, therefore, it has to be understood in the said perspective.
D He has also submitted that Section 2 of the 1971 Act was amended vide
Act 31 of 2003 with effect from 8th May, 2003, as a consequence of
which, respect to the National Anthem is a part of the statutory provision.
To buttress the said submission, he has emphasized on the language
employed in Section 2 which uses the words “or the Constitution of
India or any part thereof”. To have a sense of completeness, we think
E it appropriate to reproduce Section 2 of the 1971 Act, which is as under:-
“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
F contempt (whether by words, either spoken or written, or by acts)
the Indian National 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.
Explanation 1.– Comments expressing disapprobation or criticism
G of the Constitution or of the Indian National Flag or of any
measures of the Government with a view to obtain an amendment
of the Constitution of India or an alteration of the Indian National
Flag by lawful means do not constitute an offence under this
section.
H
SHYAM NARAYAN CHOUKSEY v. UNION OF INDIA 1157
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Explanation 2.– The expression, “Indian National Flag” includes A
any picture, painting, drawing or photograph, or other visible
representation of the Indian National Flag, or of any part or parts
thereof, made of any substance or represented on any substance.
Explanation 3.– The expression “public place” means any place
intended for use by, or accessible to, the public and includes any B
public conveyance.
Explanation 4.- The disrespect to the Indian National flag means
and includes—
(a) a gross affront or indignity offered to the Indian National Flag;
or C
(b) dipping the Indian National Flag in salute to any person or
thing; or
(c) flying the Indian National Flag at half-mast except on occasions
on which the Flag is flown at half-mast on public buildings in
accordance with the instructions issued by the Government; or D
(d) using the Indian National Flag as a drapery in any form
whatsoever except in state funerals or armed forces or other para-
military forces funerals; or
(e) using the Indian National Flag:-
(i) as a portion of costume, uniform or accessory of any description E
which is worn below the waist of any person; or
(ii) by embroidering or printing it on cushions, handkerchiefs,
napkins, undergarments or any dress material; or
(f) putting any kind of inscription upon the Indian National Flag;
or F
(g) using the Indian National Flag as a receptacle for receiving,
delivering or carrying anything except flower petals before the
Indian National Flag is unfurled as part of celebrations on special
occasions including the Republic Day or the Independence Day;
or G
(h) using the Indian National Flag as covering for a statue or a
monument or a speaker’s desk or a speaker’s platform; or
(i) allowing the Indian National Flag to touch the ground or the
floor or trail in water intentionally; or
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1158 SUPREME COURT REPORTS [2018] 1 S.C.R.
A (j) draping the Indian National Flag over the hood, top, and sides
or back or on a vehicle, train, boat or an aircraft or any other
similar object; or
(k) using the Indian National Flag as a covering for a building; or
(l) intentionally displaying the Indian National Flag with the
B “saffron” down.”
13. It is his further submission that once the words “or any part
thereof” have been used in 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.
C 14. Dr. Rajeev Dhawan, learned senior counsel, who was
permitted to intervene in-person, has supported the stand of the Union
of India so far as the modification of the interim order is concerned.
15. Though Mr. Sajan Poovayya, learned senior counsel, has filed
a separate writ petition relating to some other aspect, he submitted that
D the word “secular” that finds place in the Preamble is meant for integration
of the diverse communities existing in India and the said principle has
been recognized in the context of the Flag Code in the Union of India
vs. Naveen Jindal and Another1. He has drawn our attention to
paragraph 27 of the judgment which we think it seemly to reproduce:
E “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.”
F
16. Emphasizing on the aforesaid passage, he would contend that
both the National Anthem and the National Flag and the National Song
being secular symbols representing the nationhood command desired
respect. He has also drawn our attention to the statement made by the
President of the Constituent Assembly. It is as under:-
G
“Statement
Mr. President: There is one matter which has been pending for
discussion, namely, the question of the National Anthem. At one
time, it was thought that the mater might be brought up before the
H 1
(2004) 2 SCC 510
SHYAM NARAYAN CHOUKSEY v. UNION OF INDIA 1159
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House and a decision taken by the House by way of a resolution. A
But it has been felt that, instead of taking a formal decision by
means of resolution, it is better if I make a statement with regard
to the National Anthem. Accordingly I make this statement.
The composition consisting of the words and music known
as Jana Gana Mana is the National Anthem of India, subject to B
such alterations in the words as the Government may authorise
as occasion arises; and the song Vande Mataram, which has played
a historic part in the struggle for Indian freedom, shall be honoured
equally with Jana Gana Mana and shall have equal status with it.
I hope this will satisfy the Members.”
C
17. We may hasten to add that we have reproduced the same to
show the sanctity of the National Anthem and the respect it has
to be given.
18. Mr. C.U. Singh, learned senior counsel appearing for the
intervenor, which has filed an application for recalling the interim order D
contends that in the absence of any law, this Court should not have
made the playing of National Anthem in cinema halls mandatory.
19. At this juncture, Mr. P.V. Dinesh, learned counsel assisting
Mr. C.U. Singh, learned senior counsel would submit that if this Court
thinks of continuing the interim order, it may at least modify the direction E
that whenever there is a film festival and more than five to six films are
exhibited in a day, the audience should be permitted to stand only at the
commencement of the first feature film.
20. Mr. V.K. Biju, learned counsel who has intervened in the writ
petition has submitted that though the Committee has been constituted F
to look into the matter from various spectrums, the interim order should
be allowed to continue.
21. Ms. Nanita Sharma, learned counsel, who is appearing for
the respondent No.4 because of the application for intervention having
been allowed, submitted that the said organization has submitted
G
representations to the Government and they need to be considered as
they are pending since 2014.
22. Mr. Sanjeev Bhatnagar, who has filed an application for
intervention, appearing in-person has submitted that there can be no
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1160 SUPREME COURT REPORTS [2018] 1 S.C.R.
A doubt that the National Anthem and the National Flag are to be respected
and every citizen is obliged to show respect, but the cinema halls may
not be the appropriate place.
23. To appreciate the submissions advanced at the Bar, it is
necessary to refer to Section 3 of the 1971 Act. It reads as under:-
B “3. Prevention of singing of National Anthem, etc..- 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.”
C 24. On a perusal of the said provision, it is clear as day that 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
D anthems and general provisions. Clause III(4) of the orders reads as
follows:-
“III(4). It is not possible to give an exhaustive list of occasions
on which the singing (as distinct from playing) of the Anthem can
be permitted. But there is no objection to the singing of the Anthem
E accompanied by mass singing so long as it is done with due respect
as a salutation to the motherland and proper decorum is
maintained.”
25. On a careful reading of the above provision, it is clear that the
said Order states that it is not possible to give an exhaustive list of the
F occasions. 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. Thus, three aspects are obvious: First the National
Anthem is not only to be respected, but it is a respect as a salutation to
the motherland; second, the list of occasions cannot be exhaustively
G stated; and, third, proper decorum has to be maintained when the National
Anthem is played or sung.
26. At this stage, we may refer to the Order/Notification dated
5th December, 2017. It is as follows:-
H
SHYAM NARAYAN CHOUKSEY v. UNION OF INDIA 1161
& OTHERS [DIPAK MISRA, CJI]
“ORDER A
Subject: Constitution of an Inter-Ministerial Committee on
playing/singing of the National Anthem.
It has been decided to constitute an Inter-Ministerial
Committee under the Chairmanship of Additional Secretary
(Border Management), Ministry of Home Affairs, with B
representatives (not below the rank of Joint Secretary) from the
following Ministries/Departments to give recommendations
regarding regulation of playing/singing of National Anthem and to
suggest changes in the Prevention to Insults to National Honour
Act, 1971 or in the Orders Relating to the National Anthem of C
India.
Sl. No. Ministry/Department
1 Additional Secretary (BM), MHA Chairman
D
2 Ministry of Defence Member
3 Ministry of External Affairs Member
4 Ministry of Culture Member
E
5 Ministry of Women and Child Development Member
6 Ministry of Parliamentary Affairs Member
7 Ministry of Information & Broadcasting Member F
8 Ministry of Minority Affairs Member
9 Department of Legal Affairs Member
10 Department of School Education and Literacy Member
G
11 Department of Empowerment of Persons with Member
Disability
12 Joint Secretary (Admn.), MHA Convenor
H
1162 SUPREME COURT REPORTS [2018] 1 S.C.R.
A 2. The Committee will submit its recommendations in six months.
3. This issues with the approval of the Competent Authority.”
27. It is perceptible from the said order, that the inter-Ministerial
Committee has been given the responsibility to make recommendations
for regulating the playing/singing of the National Anthem and to suggest
B changes in the 1971 Act or in the Orders relating to the National Anthem
of India.
28. We may presently travel to the past. This Court in Bijoe
Emmanuel and Others vs. State of Kerala and Others2 (in paragraphs
9 and 10) has also emphasized on respect to the National Anthem. We
C may hasten to add that 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.
29. We may at this stage reproduce the Statement of Objects and
D Reasons of the 1971 Act, as the same has been stressed by Mr. Abhinav
Srivastava, learned counsel for the petitioner. It reads as under:-
“STATEMENT OF OBJECTS AND REASONS
Cases involving deliberate disrespect to National Flag, the
National Anthem and the Constitution have come to the notice in
E
the recent past. Some of these incidents were discussed in both
the Houses of Parliament and members expressed great anxiety
about the disrespect shown to the national symbols. Government
were urged to prevent the recurrence of such incidents. Disrespect
to the National Flag and the Constitution or the National Anthem
F is not punishable under the existing law. Public acts of insults to
these symbols of sovereignty and the integrity of the nation must
be prevented. Hence the Bill. The scope of the law is restricted
to overt acts of insult to and attack on, the national symbols by
burning, trampling defiling or mutilating in public. It is not intended
to prohibit honest and bona fide criticism of the symbols, and
G
express provisions to this effect have been made in the Bill.”
30. When we consider the perspectives put forth before us
pronounced in their own way, we have no shadow of doubt that one is
compelled to show respect whenever and wherever the National Anthem
2
H AIR 1987 SC 748
SHYAM NARAYAN CHOUKSEY v. UNION OF INDIA 1163
& OTHERS [DIPAK MISRA, CJI]
is played. It is the elan vital of the Nation and fundamental grammar of A
belonging to a nation state. However, the prescription of the place or
occasion has to be made by the executive keeping in view the concept
of fundamental duties provided under the Constitution and the law.
31. In view of the aforesaid, we think it appropriate that the
Committee should comprehensively look into all the aspects. Mr. K.K. B
Venugopal, learned Attorney General for India has submitted in the course
of argument that the petitioner can give suggestions by way of
representation to the Committee. Mr. V.K. Biju and Ms. Nanita Sharma,
learned counsel and Mr. Sanjeev Bhatnagar, the applicant in-person can
also give suggestion in this regard. When we say suggestions, we mean
that suggestions shall only relate to the National Anthem and nothing C
else.
32. Having said that, the issue remains for continuance of the
interim order or modification of the same. As submitted by Mr. Venugopal,
learned Attorney General, the playing of the National Anthem in the
cinema halls on the screen may not be made mandatory and the word D
“shall” may be substituted with “may” until a final decision is taken by
the Committee and, thereafter, by the Central Government. Needless to
emphasize, the discretion vests with the Central Government and they
shall take a decision uninfluenced by the interim order as clarified in our
order dated 23rd October, 2017. E
33. In view of the aforesaid, we do not intend to keep the writ
petition pending and dispose of the same with the following directions:-
(i) 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. F
(ii) The order passed on 30th November, 2016, is modified to the
extent that playing of the National Anthem prior to the
screening of feature films in cinema halls is not mandatory,
but optional or directory.
G
(iii) Since the Committee constituted by the Union government is
looking into all aspects of the matter, it shall make its
recommendations uninfluenced by the interim directions of
this Court, as clarified in our order dated 23rd October, 2017.
H
1164 SUPREME COURT REPORTS [2018] 1 S.C.R.
A Similarly, the competent authority shall in taking its decision(s)
not be constrained or influenced by any of the interim
directions.
(iv) Citizens or persons are bound to show respect as required
under executive orders relating to the National Anthem of
B India and the prevailing law, whenever it is played or sung
on specified occasions.
(v) The exemption granted to disabled persons shall remain in
force till the final decision of the competent authority with
regard to each occasion whenever the National Anthem is
C played or sung.
34. The writ petition is, accordingly, disposed of. There shall be
no order as to costs.
Ankit Gyan Writ Petition disposed of.
D
E
F
G
H
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