Thirteen years ago, same petitioner, same judge, and the anthem

As Madhya Pradesh HC judge, Justice Misra ruled against use of anthem in film, Supreme Court let screening go on.

Written by Utkarsh Anand | New Delhi | Updated: December 1, 2016 11:39 am
National anthem, Cinema halls, movie theatres, Supreme court, supreme court order, supreme court ruling, Justice Dipak Misra , Chouksey, petitioner, Shyam Narayan Chouksey, thirteen years ago, india news, indian express news Justice Dipak Misra (center).

Wednesday was not the first time that Justice Dipak Misra ruled on how and when the national anthem should be played in a cinema. Nor was Wednesday the first time that public interest petitioner Shyam Narayan Chouksey had succeeded in getting a court order over an “insult” to the national anthem. Thirteen years ago, when he was a judge in the Madhya Pradesh High Court, Justice Misra had passed a detailed order on the imperatives of showing respect to the national anthem.

Then, the petitioner before the High Court bench headed by him was none other than Chouksey — the same person on whose PIL the Supreme Court bench led by Justice Misra Wednesday issued slew of directives.

WATCH VIDEO: Supreme Court Makes Playing National Anthem At Theaters Mandatory

 

Speaking to The Indian Express, Chouksey described it as a “mere coincidence” that his PIL was heard by Justice Misra in the Supreme Court too, and maintained that his petition has highlighted several recent incidents of insulting the national anthem while annexing all other orders passed in the similar matter in the past.

In 2003, Chouksey moved a petition in the Madhya Pradesh High Court accusing producer-director Karan Johar of insulting the national anthem in his movie ‘Kabhi Khushi Kabhi Gham’. Chouksey complained that a scene in the movie depicted the national anthem in poor light. Further, he rued that people in the hall did not stand when the anthem was played.

Allowing Chouksey’s petition, Justice Misra, authoring the Division Bench judgment in July 2003, had ordered that the movie shall be withdrawn from all theatres and could not be shown unless the producer removed the scene depicting the national anthem in what the judgment said was “contrary to national ethos and an anathema to the sanguinity of the national feeling”.
This order was set aside by the Supreme Court in 2004. But later, on a review petition moved by Chouksey, the apex court recalled its 2004 order and agreed to reconsider various questions of law involved in this matter.

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Finally, in November 2006, the top court brought the curtain down on this case, saying the questions of law were
being left open and that it would deal with the issues in some other matter. The Supreme Court, however, allowed the movie to be screened in its original form, without any cuts or deletion of the scene on the national anthem.

In his order as a high court judge, Justice Misra had said that “any person who shows disrespect to the national anthem in a way, has to be regarded involved in anti-national activity”.

The judge’s views were clear that “no one is permitted to pave the path of deviancy and introduce the theory totalistic individualism in the name of freedom of expression” and that the “national anthem being the honour, pride and symbol of India and it is basically being the symbol of sovereignty and integrity of India, every citizen is under the obligation to respect.”

The judgment added: “The national anthem is pivotal and centripodal to the basic conception of sovereignty and integrity of India. It is the marrow of nationalism, hypostasis of patriotism, nucleus of national heritage, substratum of culture and epitome of national honour…every citizen should remember that every word, deed and thought by him has to be indicative of the respect for the Constitution and the national anthem.”

Although Justice Misra said that it was not required for the high court to deal with the aspect of standing up of the audience when the focus had to be on the aspect of certification of the movie, the judge did say that it was not correct to argue that people did not need to stand up when the national anthem is played as a part of a feature film.

“The Apex Court in the case of Bejoi Emannuel has clearly laid down that when the national anthem is sung and if one stands up, it should not be treated as disrespect. If the aforesaid judgment is understood correctly it requires that audience must stand,” stated the judgment.

Referring to the controversial scene in ‘Kabhi Khushi Kabhi Gham’, the judge further said: “…it runs counter to the ratio laid down by the Apex Court in the case of Bejoi…as the audience in the film do not stand up immediately.”

In Bejoi Emannuel’s case, a two-judge bench of the Supreme Court had ordered a school in Kerala to take back three children who had been expelled for not singing the National Anthem, although they stood during the Anthem. The children desisted from singing because of their conviction that their religion did not permit them to join any rituals except in their prayers to Jehovah, their God. The top court ruled that there is no legal provision that obliges anyone to sing the National Anthem, and it is not disrespectful to the Anthem if a person who stands up respectfully when it is being sung does not join in the singing. It, however, did not deal with the issue of whether it would be disrespectful if a person chose not to stand during the National Anthem.

Meanwhile, on an appeal by Karan Johar against Justice Misra’s verdict, a three-judge bench led by then Chief Justice V N Khare set aside the High Court order on April 19, 2004, stating it was not mandatory to stand when the national anthem is played.

“We are satisfied that in view of the instructions issued by the Government of India that the national anthem
which is exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is not expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the national anthem,” it said.

However, Chouksey moved a review petition against this order, pointing out that he was not heard at the time of this order despite filing a caveat. On October 21, 2005, a bench headed by then Chief Justice R C Lahoti allowed his review petition and recalled the 2004 order. “In our opinion, the questions of law arising for decision have far-reaching implications and need to be noticed and considered by this Court,” said Justice Lahoti although he said that the issue of certification to the movie need not be gone into any further.

This matter later came up for hearing before another three-judge bench headed by then Chief Justice Y K Sabharwal on November 15, 2006. This time, the court simply disposed it of saying that the questions of law were being left open and would be determined in an appropriate case.