Shyam Narayan Chouksey vs Union Of India on 9 January, 2018

                                                                       REPORTABLE

                                  IN THE SUPREME COURT OF INDIA

                                    CIVIL ORIGINAL JURISDICTION


                                WRIT PETITION (CIVIL) NO.855 OF 2016


     SHYAM NARAYAN CHOUKSEY                                      … Petitioner(s)


                                   Versus


     UNION OF INDIA  OTHERS                                     … Respondent(s)



                                            JUDGMENT

Dipak Misra, CJI.

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 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
Signature Not Verified

Anthem is being played or sung; to specify what will constitute
Digitally signed by
CHETAN KUMAR
Date: 2018.01.09
21:05:17 IST
Reason:

disrespect and abuse of the National Anthem; and to restrain the
2

use of the National Anthem for any commercial exploitation or to

gain financial advantage in any manner.

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.

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 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
3

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.

(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 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 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.‖

4. After issuing the directions, this Court noted the submissions

of the learned Attorney General which were to the following effect:-
4

―We have so directed as Mr. Mukul Rohtagi, learned
Attorney General for India submits with all humility
at his command and 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 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:-

―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.

Mr. Rohatgi, learned Attorney General for
India submitted that how the physically challenged
or physically handicapped persons shall show
respect to the National Anthem, the Central
Government will issue guidelines within ten days
5

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
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. 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
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 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. Mr. Rohatgi, learned Attorney General
6

accepted the said suggestion.

In view of the aforesaid, it is clarified that when
the National 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 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 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 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 said order is as follows:-

―This is an application filed by the NPRD to direct
7

the respondent No.1 to exempt certain categories of
disabled persons from the purview of the order of
this Court dated 30th November, 2016 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

(ii) Those with autism

(iii) Those with cerebral palsy

(iv) Intellectual disabilities

(v) Mental illness

(vi) Deaf blind

(vii) Multiple disabilities

(viii) Parkinsons, Multiple sclerosis

(ix) Leprosy cured

(x) Muscular dystrophy

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.

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
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Union of India.‖

8. On the previous occasion i.e. 23rd October, 2017, having heard

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 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.

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 with the Central
Government. The discretion has to be exercised
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

Attorney General that the Central Government has constituted a
9

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

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,

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

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

integrity of the Nation‖ and the said words are required to be

interpreted on a broad canvass so that honour and respect
10

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 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, 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 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 given by him is that the word

―shall‖ used in the order be substituted by ―may‖.
11

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. 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 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
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 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
12

constitute an offence under this section.

Explanation 2.– The expression, ―Indian National
Flag‖ includes 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 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

(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) 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 which is worn below the waist of any
person; or

(ii) by embroidering or printing it on cushions,
handkerchiefs, napkins, undergarments or any
13

dress material; or

(f) putting any kind of inscription upon the Indian
National Flag; or

(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

(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

(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 ―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.

14. Dr. Rajeev Dhawan, learned senior counsel, who was
14

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 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:

―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.‖

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
1
(2004) 2 SCC 510
15

desired respect. He has also drawn our attention to the statement

made by the President of the Constituent Assembly. It is as under:-

―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 House
and a decision taken by the House by way of a
resolution. 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 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.‖

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 contends that in the absence of any law, this Court should
16

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 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 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

representations to the Government and they need to be considered

as they are pending since 2014.

17

22. Mr. Sanjeev Bhatnagar, who has filed an application for

intervention, appearing in-person has submitted that there can be

no 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:-

―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.‖

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 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
18

playing) of the Anthem can be permitted. But there
is no objection to the singing of the Anthem
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 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 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:-

―ORDER

Subject: Constitution of an Inter-Ministerial
Committee on playing/singing of the National
Anthem.

19

It has been decided to constitute an
Inter-Ministerial Committee under the
Chairmanship of Additional Secretary (Border
Management), Ministry of Home Affairs, with
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 India.

Sl. No.         Ministry/Department

     1     Additional Secretary (BM),      Chairman
           MHA
     2     Ministry of Defence             Member
     3     Ministry of External Affairs    Member
     4     Ministry of Culture             Member
     5     Ministry of Women and Child     Member
           Development
     6     Ministry of Parliamentary       Member
           Affairs
     7     Ministry of Information        Member
           Broadcasting
     8     Ministry of Minority Affairs    Member
     9     Department of Legal Affairs     Member
     10    Department of School            Member
           Education and Literacy
     11    Department of Empowerment       Member
           of Persons with Disability
     12    Joint Secretary (Admn.), MHA    Convenor


2.       The    Committee        will     submit      its
                                           20


                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 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 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

Reasons of the 1971 Act, as the same has been stressed by Mr.

2
AIR 1987 SC 748
21

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 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 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
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 is played. It is the elan vital of the Nation and fundamental

grammar of 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
22

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. 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 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 ―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.

23

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.

(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.

(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. Similarly, the competent authority shall in taking its

decision(s) not be constrained or influenced by any of the

interim directions.

24

(iv) 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.

(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

played or sung.

34. The writ petition is, accordingly, disposed of. There shall be

no order as to costs.

…………………………CJI.
[Dipak Misra]

……………………………..J.
[A.M. Khanwilkar]

……………………………..J.
[Dr. D.Y. Chandrachud]

New Delhi
January 09, 2018.

Article source: Supreme Court

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