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The National Anthem Case (Note)

An interim order by  a Bench of the Supreme Court comprising Dipak Misra and Amitava Roy, JJ, in the case of Shyam Narayan Chouksey v. Union of India, Writ Petition(s)(Civil) No(s). 855/2016, garnered a great deal of attention recently for having issued directions requiring the National Anthem to be played with the National Flag on the screen and with entry/exit doors closed in all cinema halls in India before the start of feature films, and for stating that 'all present in the hall are obliged to stand up to show respect to the National Anthem'.

Unsurprisingly, this gave rise to security concerns, as well concerns about the free choice and state imposition. Largely lost were content law concerns: in its directions, the court also stated:

"Having heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is 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 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 the part of every one present to show due respect and honour. To 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 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.
(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed."

As such, the Order has raised questions about how and if at all the the National Anthem may be depicted in content such as films and books. It states, for example, that the 'National Anthem or a part of it shall not be printed on any object' without seeming to include any caveats or to limit the prohibition with reference to the intention of the printing. The result, arguably, is that, per the Order, it may not be legitimate to print the National Anthem in books even if they are, perhaps, textbooks.

In fact, whether in relation to content law or other law, there seem to be no caveats worth mentioning in the Order. Quite apart from not restricting printing in only specific circumstances, the Order also, for example, contains no exceptions for the benefit of persons with disabilities or the infirm who may not be able to stand for the National Anthem (or anything else, for that matter). As such, it is difficult not to conclude that in its enthusiasm for the collective good, the Order seems to ignore the individual, his rights and disabilities.

The prohibitions in and requirements of the Order are sweeping, nuance seems to be all but alien to it, and the legal basis of the Order is unclear. It refers to the Constitution and to the Prevention of Insults to National Honour Act, 1971, as well as to 'Constitutional Patriotism' which appears to be a newly-minted concept in the Indian corpus juris. With reference to statute alone, the Order appears to go beyond the scope of the 1971 Act and, in doing so, seems to engage in not just statutory interpretation but in statutory construction which is not ordinarily the remit of the judiciary (although there are plenty of exceptions to this general understanding). The legal justification for its engaging with the law in such a manner is, unfortunately, not entirely clear from the text of the Order. Without more nuance and without the rationale underlying the Order being made clearer, it now becomes extremely difficult to determine how the National Anthem may be engaged with in print, film, and other content.

(This post is by Nandita Saikia and was first published at IN Content Law. It is based on tweets posted at @INContentLaw earlier this evening.)