Activism going haywire, SC order on anthem should not be confirmed: Soli Sorabjee

“In my opinion, the order is per incuriam (an order that is passed in disregard of a binding authority),” said Sorabjee.

Written by Maneesh Chhibber | New Delhi | Updated: December 2, 2016 10:32 am
anthem, anthem supreme court, national anthem, supreme court, national anthem in movies, Soli Sorabjee, national anthem before movies, movies national anthem supreme court national anthem, india news Former Attorney General Soli Sorabjee questioned the order terming it as an example of judicial over-reach. (Source: File)

A day after the Supreme Court ruled that all cinema halls shall play the national anthem before a film starts and that all present should stand up, eminent jurist and former Attorney General Soli Sorabjee questioned the order terming it as an example of judicial over-reach.

“In my opinion, the order is per incuriam (an order that is passed in disregard of a binding authority),” he told The Indian Express and said that he hoped the bench would modify its order at the next hearing.

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

Asked why, Sorabjee said: “Is it the court’s function to go into such issues? People must stand up…is it the only criterion for showing respect to the national anthem? People may not be able to stand up for physical reasons, people may not stand up for intellectual or religious reasons because they may consciously believe that their religious beliefs, consciously held, prevent them from standing up. The other thing is that they (the bench) have not referred to the landmark judgment in Bijoe Emmanuel case. Bilkul refer hi nahin kiya. Also, how will this order be implemented? Who will count (how many people are standing and how many are sitting while the anthem is playing)? Who will see if one can’t stand up due to physical problems or some other reasons. And then, close the exit doors… what if there is an emergency? What if somebody urgently needs to go to the washroom?”

Also read | Standing up for Anthem: Between choice and convention

In the Emmanuel case, the SC ordered a school in Kerala to take back three children it had expelled for not singing the national anthem. The children didn’t sing the anthem because of their conviction that their religion did not permit them to join any rituals except in their prayers to Jehovah. The court had ruled that there is no legal provision that obliges anyone to sing the anthem.

WATCH VIDEO: National Anthem Will Be Played Before All Film Screenings In Cinema Halls

Saying that while the “intent” of the court may be “good”, Sorabjee said “but the method is not good”.

“This is going haywire. This (order) is not capable of effective implementation. That’s what I am trying to say. Judicial activism must not go haywire. They are referring to fundamental duties under Article 51A. There are so many fundamental duties, will they give directions to enforce them? i don’t think they are judicially enforceable. To preserve the rich culture of our country…see that. How will you implement that? I think judiciary has gone a little over-the-top,” he added.

In its order, the bench referred to Article 51(A) (a) of the Constitution, which states that “it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.

Asked what, in his opinion, could be the way forward, Sorabjee said: “The court must feel that this order requires modification. interim order should not be confirmed. Tell me one thing: is the acid test of patriotism and nationalism only that we stand up (when national anthem is played)? Any rascal will stand up and he may not have any belief in the ideals of the Constitution or the national flag.

Remember Dr (Samuel) Johnson’s famous statement: Patriotism is the last refuge of a scoundrel. But doing this, passing such orders, they give ammunition to the critics of judicial activism in the country. I am repeatedly saying the intent is good but that’s not the way to do it. Who will implement it? Will cinema hall owner be responsible?”

Saying that the Constitution, which allows one freedom of expression, also calls for respect of the freedom of expression of thoughts that one doesn’t agree with, Sorabjee said, “This comes with the rider that there should not be incitement to violence. There are many cranks in our country. but we have to respect their beliefs.”

“I think the judges got carried away,” said Sorabjee. “The judges must not feel that they are the only people who can save the country and democracy. They must realise their limitations and that is the Lakshman Rekha that the judiciary must observe, it should practise what it preaches. It must also stick to the Lakshman Rekha. And, one thing is don’t get into fields that are beyond the judicial ken.”

Saying that the landmark judgment of the bench headed by justice O Chinnappa Reddy in the Bijoe Emmanuel case was a “very good judgment”, the former Attorney General said, “At the next hearing, somebody, maybe the AG, should appear and tell the court you can’t pass such orders. And, the court should listen… I would say this judgment is per incuriam. Read Emmanuel judgment.”

For all the latest India News, download Indian Express App now

First Published on: December 2, 2016 3:47 am
  1. P
    Period
    Dec 2, 2016 at 4:35 am
    DK HEADED PERVERT DIPAK MISHRA SHOULD NOT BE TAKEN SERIOUSLY.
    Reply
    1. P
      PSandhu
      Dec 2, 2016 at 3:14 am
      It is best for the nation if the courts could focus on millions of long outstanding cases for delivery of justice to the citizens as opposed to wasting time on ping such orders. If article 51 exists, a Deputy Commissioner who also (I believe) is District Mahistrate can enforce this. lt;br/gt;lt;br/gt;Why should then the highest court spend its precious time on ping such orders!
      Reply
      1. P
        PREM CHHATPAR
        Dec 2, 2016 at 4:08 am
        With such an individualistic approach, India would never have won freedom in 1947, hiji left without followers with the reasoning - why become "activist" Carry on and enjoy the pleasures of life.
        Reply
        1. C
          Chaman Lal-JNU
          Dec 2, 2016 at 7:30 am
          Most respected senior Supreme Court lawyer on National anthem order!
          Reply
          1. T
            Tata
            Dec 2, 2016 at 7:48 am
            Stupid comments. In Kerala case they still have to stand up. Even in this case they are asking you to show respect. Stop making fun of anything Indian. You don't like it go back to Iran where Zoroastrian were kicked out by Islam and Hindu India gave you shelter.
            Reply
            1. A
              ak dev
              Dec 2, 2016 at 8:56 am
              It's Soli Sorabjee and not SC that has gone haywire. He seems to have lost his ability to think about the national interest. The example he has are are laughable. If his logic of inability to enforce this SC order is applied elsewhere, all criminals should be allowed to do whatever they want as there is no way the government catch all of them. These pseudos are using the same logic on demonetisation that corruption can't be stopped in India. It look they are the ills and India needs them disar med as fast as possible.
              Reply
              1. A
                Akshar B
                Dec 2, 2016 at 10:37 am
                It's not about standing up. It's about being told to stand up.
                Reply
                1. A
                  ArunM
                  Dec 2, 2016 at 5:35 am
                  If a handicap person can come to theatre to watch movie all the distance from his home , he can as well stand for 58 seconds during national anthem.lt;br/gt;Its time to change thinking.
                  Reply
                  1. A
                    Atul Bhardwaj
                    Dec 2, 2016 at 2:01 am
                    This is what happens when the SC judges are blinded by their greed and big egos;w of the system has been made one big mess by CJ Thakur in particular.You know u will get the desired result if u route your peion through favourite/agents senior counsel.lt;br/gt;This is a scam of humongous proportions;where money changes hands in appointment of judges-as there is no check on it.lt;br/gt;Nobody trusts SC nowadays;its conduct is highly biased.Maybe some sanity will be restored after Thakur demurs office.
                    Reply
                    1. A
                      Avinash
                      Dec 2, 2016 at 2:29 pm
                      This is smaller picture.lt;br/gt;It is an attempt to tarnish image of SC. lt;br/gt;Mishra must have pla in the hands of BJP to earn bad names to SC.
                      Reply
                      1. B
                        BK
                        Dec 2, 2016 at 5:07 pm
                        Sir Charge 30 lakhs for five minutes from someone, file a PIL and get the order reversed., Lawyers should argue in Courts ., judgments are nto set adide in offices of newspapers
                        Reply
                        1. B
                          Bijan Mohanty
                          Dec 2, 2016 at 6:13 pm
                          And you to stan.
                          Reply
                          1. B
                            Bijan Mohanty
                            Dec 2, 2016 at 4:50 pm
                            Supreme Court has taken activism too far. Soli Sarabji's remarks are brilliant.
                            Reply
                            1. S
                              Surinder
                              Dec 2, 2016 at 6:58 am
                              Few people in India are taking the freedom of expression a bit far. Simply because there is someone else who is shedding his blood for people like Soli Sorabee and who are supporting him for an ertion which does not have any merit. Standing at a National Anthem is pride and it appears that majority of us value that pride and should not even bother what Soli Sorabjee or other self centred people having no regard for nation.
                              Reply
                              1. K
                                Kaliyug
                                Dec 2, 2016 at 3:33 pm
                                The playing of national anthem before the movie or after should be checked out. If people come later to the movie or leave early, it will state clearly if playing the national anthem is worth the trouble.
                                Reply
                                1. C
                                  Col S
                                  Dec 2, 2016 at 1:53 am
                                  This order MUST be CONFIRMED as ELITE and BRAINS like him FAILED to INSTILL NATIONALISM in 70 years.Nationalism is made SECONDARY to caste, colour, religion and region, which is not a good OMEN.Public is SICK of SUCH expert OPINION who are SELF CENTRED and talk for PRIVILEGED only.Country heading towards FEUDALISM as it becomes VICTIM of Conspiracy of Silence on KEY ISSUES-- Loot of Country's wealth, by COLLUDED politicians,legalised per and Country's SOVreignty. .lt;br/gt;Democracy reduced toGOVERNMENT for the rich, privileged and thieves.NO TIME to think and SPEAK.,
                                  Reply
                                  1. S
                                    Sreenivasan
                                    Dec 2, 2016 at 10:53 am
                                    Some judgements smack the political views of the individuals.
                                    Reply
                                    1. C
                                      citizen
                                      Dec 2, 2016 at 1:56 pm
                                      Even in China, such ruling is not there. Nowhere in the world, national anthem is pla at movie halls. It's disrespectful.
                                      Reply
                                      1. F
                                        Franky
                                        Dec 2, 2016 at 8:45 am
                                        The mistakes happen when one is over execited or frightened. In this case courts are frightened of the big brother who wants to keep the judiciary under his control.
                                        Reply
                                        1. G
                                          gc
                                          Dec 2, 2016 at 8:20 am
                                          Pseudo arguments from a so called 'Eminent lawyer'. In the order there is exception granted for the disabled. The order says the anthem "should" be pla and people "should" stand up.It does not say MUST.The fact about this w issue is, IF YOU HAVE PROBLEM WITH INDIA,YOU WILL HAVE PROBLEM WITH STANDING UP FOR NATIONAL ANTHEM;OTHERWISE,if you love India,you would not mind.It is the fact.
                                          Reply
                                          1. G
                                            gc
                                            Dec 2, 2016 at 8:26 am
                                            The real reason these "intellectuals" are irritated by this order is that they fear it will instill nationalism in majority of people and thus their LIBERAL SHOPS will have far more difficulty in operating their dhanda.That is the real reason.These people don't care about the nation,disabled (for whom exception is granted in the order)or anything else, for them it is their dhanda and plans to disintegrate India that matters.
                                            Reply
                                            1. Load More Comments