SHYAM NARAYAN CHOUKSEY versus UNION OF INDIA & OTHERS on 9 January 2018

[2018] 1 S.C.R. 1147

SHYAM NARAYAN CHOUKSEY

v.

UNION OF INDIA & OTHERS

(Writ Petition (Civil) No.855 of 2016)

JANUARY 09, 2018

[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 directioncommanding the respondents to take appropriate steps forinculcating in the public a proper sense for paying due respect tothe National Anthem – On 30[th] November, 2016, Supreme Courtpassed interim order, inter alia, directing that all cinema Halls shallplay the National Anthem before the feature film starts and all presentin the hall to oblige and stand up to show respect to the NationalAnthem – Later, the Court passed another order advising CentralGovernment to bring out requisite notification or circular or rulesin this regard – In pursuant thereto, State constituted a Committeeby the Notification dated 5[th] December, 2017 to look into everyaspect including the amendment to the Prevention of Insults toNational 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 ofNational Anthem in cinema Halls may be modified by making itdirectory – Held: The Committee appointed by the Central/UnionGovernment shall submit its recommendations to the competentauthority in terms of the Notification dated 5[th] December, 2017, forfollow up action – The order passed on 30[th] November, 2016,modified to the extent that playing of the National Anthem prior tothe screening of feature films in cinema halls is not mandatory, butoptional or directory – Since the Committee constituted by the Uniongovernment is looking into all aspects of the matter, it shall make itsrecommendations uninfluenced by the interim directions of SupremeCourt – Similarly, the competent authority shall in taking itsdecision(s) not be constrained or influenced by any of the interimdirections – Prevention of Insults to National Honour Act, 1971 Act– ss. 2 and 3 – Public Interest Litigation

A

B

C

D

EF

GH

1148SUPREME COURT REPORTS

ANational Anthem/National Flag – Constitution of India –Art.32 – Petitioner, a public spirited person, sought directioncommanding the respondents to take appropriate steps forinculcating in the public a proper sense for paying due respect tothe National Anthem – On 30[th] November, 2016, Supreme Courtpassed interim order, inter alia, directing that all cinema Halls shallBplay the National Anthem before the feature film starts and all presentin the hall to oblige and stand up to show respect to the NationalAnthem – Interlocutory applications filed, which related to thedifficulties faced by the disabled persons – Applicants contendedthat there has to be some kind of exemption for physically challengedCpersons or physically handicapped persons – State constituted aCommittee by the Notification dated 5[th] December, 2017 to lookinto every aspect including the amendment to the Prevention ofInsults to National Honour Act, 1971 Act and to formulate executiveinstructions – The orders were modified, physically challengedpersons or physically handicapped persons exempted from the ambitDof the orders – Held: The exemption granted to disabled persons toremain in force till the final decision of the competent authoritywith regard to each occasion whenever the National Anthem playedor sung – Rights of Persons with Disabilities Act, 2016 – PublicInterest Litigation.EConstitution of India – Art. 51A(a) – Citizens or persons arebound to show respect as required under executive orders relatingto the National Anthem of India and the prevailing law, whenever itis played or sung on specified occasions.

Disposing of the writ petition, the CourtF

Conclusion

Disposing of the writ petition, the CourtF

HELD : 1. On a perusal of the s.3 of the Prevention ofInsults to National Honour Act, 1971, it is clear that no one canintentionally prevent the singing of the National Anthem or causeany disturbance to an assembly engaged in such singing. It is apenal provision. The Orders relating to the National Anthem dealGwith playing of the anthem, mass singing of the anthem, playingof foreign anthems and general provisions. [Para 24] [1160-C-D]

2. On a careful reading of the s.3, it is clear that the saidOrder states that it is not possible to give an exhaustive list ofthe occasions. It further lays down that there is no objection toH

the singing of the National Anthem accompanied by mass singingso long as it is done with due respect as a salutation to themotherland and maintenance of the proper decorum. Thus, threeaspects are obvious: First the National Anthem is not only to berespected, 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 NationalAnthem is played or sung. [Para 25] [1160-F-G]

3. There is no shadow of doubt that one is compelled toshow respect whenever and wherever the National Anthem isplayed. It is the elan vital of the Nation and fundamental grammarof belonging to a nation state. However, the prescription of theplace or occasion has to be made by the executive keeping inview the concept of fundamental duties provided under theConstitution and the law. [Para 30] [1162-H; 1163-A]

Bijoe Emmanuel and Others v. State of Kerala andOthers AIR 1987 SC 748 : [1986] 3 SCR 518 – reliedon.

Union of India v. Naveen Jindal and Another (2004) 2SCC 510 : [2004] 1 SCR 1038 – referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 855of 2016.

Under Article 32 of the Constitution of India.

K. K. Venugopal, AG, Shiv Mangal Sharma, AAG, Saurabh ShyamShamshery, 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.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, A

B

C

D

E

F

G

H

AAnkit Raj, Ms. Indira Bhakar, Ms. Ruchi Kohli, Nishant RamakantraoKatneshwarkar, Arpit Rai, Biju P Raman, Mrs. Nanita Sharma,V. Sharma, Bajrang Laljat, Ms. Aarohi Bhalla, Ms. Sujata Kurdukar, AjitPathak, V. K. Biju, Advs for the appearing parties.

The Judgment of the Court was delivered byB

DIPAK MISRA, CJI. 1. The petitioner, a public spirited person,has approached this Court under Article 32 of the Constitution of Indiafor issue of a writ of mandamus or any other appropriate writ, order ordirection commanding the respondents to take appropriate steps forinculcating in the public a proper sense for paying due respect to theCNational Anthem; to issue a writ, order or direction as to what is requiredto be done and not to be done when the National Anthem is being playedor sung; to specify what will constitute disrespect and abuse of theNational Anthem; and to restrain the use of the National Anthem for anycommercial exploitation or to gain financial advantage in any manner.

2. Apart from the aforesaid prayers, there are many other prayersand one such prayer includes that no one should print the National Anthemon any undesirable object or display it in a manner and at such placeswhich may be disgraceful and may tantamount to showing disrespect tothe National Anthem.

D

E3. After issue of notice, learned Attorney General for India enteredappearance. On 30[th] November, 2016, taking note of the assertions madein the petition, this Court had passed an interim order, which reads thus:-

“Having heard the learned counsel for the parties and awaitingthe reply from the Union of India, as an interim measure, it isFdirected that the following directions shall be scrupulouslyfollowed:- (a) There shall be no commercial exploitation to give financialadvantage or any kind of benefit. To elaborate, the NationalAnthem should not be utilized by which the person involved withit either directly or indirectly shall have any commercial benefit orGany other benefit.

(b) There shall not be dramatization of the National Anthem and itshould not be included as a part of any variety show. It is becausewhen the National Anthem is sung or played it is imperative on H

the part of every one present to show due respect and honour. Tothink of a dramatized exhibition of the National Anthem is absolutelyinconceivable.

(c) National Anthem or a part of it shall not be printed on anyobject and also never be displayed in such a manner at such placeswhich 3 may be disgraceful to its status and tantamount todisrespect. It is because when the National Anthem is sung, theconcept of protocol associated with it has its inherent roots inNational identity, National integrity and Constitutional Patriotism.

(d) All the cinema halls in India shall play the National Anthembefore the feature film starts and all present in the hall are obligedto stand up to show respect to the National Anthem.

(e) Prior to the National Anthem is played or sung in the cinemahall on the screen, the entry and exit doors shall remain closed sothat no one can create any kind of disturbance which will amountto disrespect to the National Anthem. After the National Anthemis 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 onefor whatever reason shall not be played or displayed.”

4. After issuing the directions, this Court noted the submissions ofthe learned Attorney General which were to the following effect:- “We have so directed as Mr. Mukul Rohtagi, learned AttorneyGeneral for India submits with all humility at his command andrecommend that National Anthem has to be respected. Thedirections are issued, for love and respect for the motherland isreflected when one shows respect to the National 4 Anthem aswell as to the National Flag. That apart, it would instill the feelingwithin one, a sense committed patriotism and nationalism.”

5. Thereafter, as the factual matrix would unfurl, two applicationswere filed seeking impleadment and recall of the interim order. Theywere taken up on 9[th] December, 2016, and on that day, the prayer forimpleadment was allowed, but as far as the application for recall wasconcerned, the Court passed the following order:- AB

C

D

E

F

G

H

A

“As far as the recall of the order is concerned, the same has to beheard on merits when the matter is finally debated upon. Be itnoted, Mr. Dinesh, learned counsel for the applicant at the time ofmentioning had submitted that there has to be some kind ofexemption for the physically challenged persons or physicallyhandicapped persons. Mr. Siddharth Luthra, learned senior counselwho was present in Court has referred to the Persons withDisabilities (Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995.

B

B

Mr. Rohatgi, learned Attorney General for India submittedthat how the physically challenged or physically handicappedpersons shall show respect to the National Anthem, the CentralGovernment will issue guidelines within ten days hence. As theguidelines are going to be issued, we clarify, if a physicallychallenged person or physically handicapped person goes to theCinema hall to watch a film, he need not stand up, if he is incapableto stand, but must show such conduct which is commensuratewith respect for the National Anthem. When we say physicallychallenged or physically 3 handicapped persons, it means personswith disability as defined under Sections 2(i) and 2(t) of the Personswith Disabilities (Equal Opportunities, Protection of Rights andFull Participation) Act, 1995. Another aspect needs to be cleared.

C

D

E

When we said that the doors shall be closed, we did not mean thatthe doors shall be bolted as mentioned in the case of MunicipalCorporation of Delhi, Delhi vs. Uphaar Tragedy VictimsAssociation and Ors. [(2011) 14 SCC 481] but only to regulatethe ingress and egress during the period while the National AnthemFis played.”

6. On the next date of hearing i.e. 14[th] February, 2017, certaininterlocutory applications were filed, which related to the difficulties facedby the disabled persons. Mr. Sidharth Luthra, learned senior counsel,who was appointed as the friend of the Court, had highlighted certainGaspects and taking note of the same, the following order was passed:- “Mr. Siddharth Luthra, learned amicus curiae, submitted that itmay be clarified that the people are not expected to stand when theNational Anthem is sung or played as a part of the storyline in thefeature film or as a part of the newsreel or the documentary.Mr. Rohatgi, learned Attorney General accepted the said suggestion.

H

In view of the aforesaid, it is clarified that when the NationalAnthem is sung or played in the storyline of a feature film or parof the newsreel or documentary, apart from what has been statedin the order dated 30.11.2016, the audience need not stand.

At this juncture, we may state that the Parliament has broughta new legislation called ’The Rights of Persons with DisabilitiesAct, 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 orderregard being had to the handicapped persons keeping in view the1995 Act. On a query being made, Mr. Mukul Rohatgi, learnedAttorney General for India submitted that the Union of India shallissue an appropriate notification/guidelines in view of the languageemployed 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 maybe permitted to file an application for intervention on behalf of theNational Platform for the Rights of the Disabled. He is at libertyto file the application.”

7. On 18[th] April, 2017, dealing with I.A. No.15 of 2017, whichalso related to disabled persons, certain modifications were made. Thesaid order is as follows:- “This is an application filed by the NPRD to direct the respondentNo.1 to exempt certain categories of disabled persons from thepurview of the order of this Court dated 30th November, 2016and 9th December, 2016. The categories of persons mentionedare:-

(i) Wheel chair users – can be cerebral palsy, Parkinsons, Multiplesclerosis, Muscular dystrophy or other conditions

(ii) Those with autism

(iii) Those with cerebral palsy

(iv) Intellectual disabilities

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

(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 inclinedto modify the orders and direct that the persons who are wheelchair users, those with autism, persons suffering from cerebralpalsy, multiple disabilities, parkinsons, multiple sclerosis, leprosycured, muscular dystrophy and deaf and blind be treated not to bewithin the ambit of the orders passed by this Court.

As far as the other categories, which we have not referredto mentioned in the application, are concerned, the same may beconsidered by the Union of India.”

8. On the previous occasion i.e. 23[rd] October, 2017, having heardlearned counsel for the parties and the learned Attorney General forIndia, the following order came to be passed:- “The submission of the learned Attorney General is that becauseof the vast diversity in the country based on religion, race, casteand even region, it becomes necessary to have uniformity whichshould be cultivated by playing the National Anthem so that whenpeople come out from the cinema halls, instilling the belief thatthey are all Indians. Be that as it may. In this context, he hasreferred 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 4Government should take a call in this regard and, if necessary, asadvised, 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 exercisedwithout being influenced by our interim order. We may furtheremphasize that the discretion may be utilized to regulate in aninclusive manner or as the Central Government feels fit.”

A

9. In pursuance of our earlier order, an affidavit has been filed bythe Union of India. It is submitted by Mr. K.K. Venugopal, learnedAttorney General that the Central Government has constituted aCommittee by a Notification/Order dated 5[th] December, 2017. We shallrefer to the same at a later stage.

B

10. Mr. Abhinav Shrivastava, learned counsel appearing for thepetitioner has raised the following contentions:- C

(a) The Prevention of Insults to National Honour Act, 1971 (forshort, ‘the 1971 Act’) vide Section 3 only deals with preventionof singing/playing of National Anthem, etc., but it does notdeal fully as to how the respect is to be shown and, therefore,Dappropriate measures should be prescribed by law in thatregard.

(b) Article 51A(a) of the Constitution which provides that everycitizen of India is to abide by the Constitution and respect itsideals and institutions, the National Flag and the NationalAnthem, warrants that every citizen or person in this countryhas to show respect to the National Anthem wherever it isplayed.

E

(c) The Preamble of the Constitution uses the word “unity andintegrity of the Nation” and the said words are required to beinterpreted on a broad canvass so that honour and respectdue to the National Anthem are maintained.

F

(d) The order passed by this Court sub-serves the cause ofintegrity of the Nation and, therefore, need not be recalledGand should be made absolute.

(e) The instructions issued under the heading “Orders Relating tothe National Anthem of India” are executive in nature asthey relate to various aspects and are not binding and, H

A

therefore, there has to be an appropriate law in the field andin the absence of law, this Court may issue directions till thelaw is brought covering the said aspects.

11. Mr. K.K. Venugopal, learned Attorney General, referring tothe affidavit and the Notification/Order would contend that the CommitteeBconstituted by the Notification shall look into every aspect including theamendment to the 1971 Act and formulation of further executiveinstructions and till then the mandatory order passed by this Court forplaying/singing of the National Anthem before starting of feature filmsin cinema halls may be modified by making it directory. The suggestionCgiven by him is that the word “shall” used in the order be substituted by“may”.

12. Mr. Sidharth Luthra, learned Amicus Curiae, has submittedthat Article 51A of the Constitution has been brought when the 1971 Actwas in force and, therefore, it has to be understood in the said perspective.DHe has also submitted that Section 2 of the 1971 Act was amended videAct 31 of 2003 with effect from 8[th] May, 2003, as a consequence ofwhich, respect to the National Anthem is a part of the statutory provision.To buttress the said submission, he has emphasized on the languageemployed in Section 2 which uses the words “or the Constitution ofIndia or any part thereof”. To have a sense of completeness, we thinkEit 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 publicview burns, mutilates, defaces, defiles, disfigures, destroys,tramples upon or *otherwise shows disrespect to or brings intoFcontempt (whether by words, either spoken or written, or by acts)the Indian National Flag or the Constitution of India or any partthereof, shall be punished with imprisonment for a term whichmay extend to three years, or with fine, or with both.

Explanation 1.– Comments expressing disapprobation or criticismGof the Constitution or of the Indian National Flag or of anymeasures of the Government with a view to obtain an amendmentof the Constitution of India or an alteration of the Indian NationalFlag by lawful means do not constitute an offence under thissection.

H

Explanation 2.– The expression, “Indian National Flag” includesany picture, painting, drawing or photograph, or other visiblerepresentation of the Indian National Flag, or of any part or partsthereof, made of any substance or represented on any substance.

Explanation 3.– The expression “public place” means any placeintended for use by, or accessible to, the public and includes anypublic conveyance.

Explanation 4.- The disrespect to the Indian National flag meansand 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 orthing; or

(c) flying the Indian National Flag at half-mast except on occasionson which the Flag is flown at half-mast on public buildings inaccordance with the instructions issued by the Government; or (d) using the Indian National Flag as a drapery in any formwhatsoever 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 descriptionwhich 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

(g) using the Indian National Flag as a receptacle for receiving,delivering or carrying anything except flower petals before theIndian National Flag is unfurled as part of celebrations on specialoccasions including the Republic Day or the Independence Day;or (h) using the Indian National Flag as covering for a statue or amonument or a speaker’s desk or a speaker’s platform; or

(i) allowing the Indian National Flag to touch the ground or thefloor or trail in water intentionally; or A

B

C

D

E

F

G

H

[2018] 1 S.C.R.

A(j) draping the Indian National Flag over the hood, top, and sidesor back or on a vehicle, train, boat or an aircraft or any othersimilar object; or (k) using the Indian National Flag as a covering for a building; or

(l) intentionally displaying the Indian National Flag with theB“saffron” down.”13. It is his further submission that once the words “or any partthereof” have been used in the 1971 Act, the same is bound to be read inconsonance with Article 51A(a) of the Constitution and hence, it presentlygets ingrained as a statutory command.

C14. Dr. Rajeev Dhawan, learned senior counsel, who waspermitted to intervene in-person, has supported the stand of the Unionof India so far as the modification of the interim order is concerned.

15. Though Mr. Sajan Poovayya, learned senior counsel, has fileda separate writ petition relating to some other aspect, he submitted thatDthe word “secular” that finds place in the Preamble is meant for integrationof the diverse communities existing in India and the said principle hasbeen recognized in the context of the Flag Code in the Union of India1vs. Naveen Jindal and Another. He has drawn our attention toparagraph 27 of the judgment which we think it seemly to reproduce:

E“Then the question arises, which view is to be accepted. NationalAnthem, National Flag and National Song are secular symbols ofthe nationhood. They represent the supreme collective expressionof commitment and loyalty to the nation as well as patriotism forthe Country. They are necessary adjuncts of sovereignty beingsymbols and actions associated therewith.”F

16. Emphasizing on the aforesaid passage, he would contend thatboth the National Anthem and the National Flag and the National Songbeing secular symbols representing the nationhood command desiredrespect. He has also drawn our attention to the statement made by thePresident of the Constituent Assembly. It is as under:-G

“Statement

Mr. President: There is one matter which has been pending fordiscussion, namely, the question of the National Anthem. At onetime, 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 bymeans of resolution, it is better if I make a statement with regardto the National Anthem. Accordingly I make this statement.

The composition consisting of the words and music knownas Jana Gana Mana is the National Anthem of India, subject tosuch alterations in the words as the Government may authoriseas occasion arises; and the song Vande Mataram, which has playeda historic part in the struggle for Indian freedom, shall be honouredequally 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 toshow the sanctity of the National Anthem and the respect it hasto be given.

18. Mr. C.U. Singh, learned senior counsel appearing for theintervenor, which has filed an application for recalling the interim ordercontends that in the absence of any law, this Court should not havemade the playing of National Anthem in cinema halls mandatory.

19. At this juncture, Mr. P.V. Dinesh, learned counsel assistingMr. C.U. Singh, learned senior counsel would submit that if this Courtthinks of continuing the interim order, it may at least modify the directionthat whenever there is a film festival and more than five to six films areexhibited in a day, the audience should be permitted to stand only at thecommencement of the first feature film.

20. Mr. V.K. Biju, learned counsel who has intervened in the writpetition has submitted that though the Committee has been constitutedto look into the matter from various spectrums, the interim order shouldbe allowed to continue.

21. Ms. Nanita Sharma, learned counsel, who is appearing forthe respondent No.4 because of the application for intervention havingbeen allowed, submitted that the said organization has submittedrepresentations to the Government and they need to be considered asthey are pending since 2014.

22. Mr. Sanjeev Bhatnagar, who has filed an application forintervention, appearing in-person has submitted that there can be no A

B

C

D

E

F

G

H

Adoubt that the National Anthem and the National Flag are to be respectedand every citizen is obliged to show respect, but the cinema halls maynot be the appropriate place.

23. To appreciate the submissions advanced at the Bar, it isnecessary to refer to Section 3 of the 1971 Act. It reads as under:-B

“3. Prevention of singing of National Anthem, etc..- Whoeverintentionally prevents the singing of the Indian National Anthemor causes disturbances to any assembly engaged in such singingshall be punished with imprisonment for a term, which may extendto three years, or with fine, or with both.”C

24. On a perusal of the said provision, it is clear as day that noone can intentionally prevent the singing of the National Anthem orcause any disturbance to an assembly engaged in such singing. It is apenal provision. The Orders relating to the National Anthem deal withplaying of the anthem, mass singing of the anthem, playing of foreignDanthems and general provisions. Clause III(4) of the orders reads asfollows:- “III(4).It is not possible to give an exhaustive list of occasionson which the singing (as distinct from playing) of the Anthem canbe permitted. But there is no objection to the singing of the AnthemEaccompanied by mass singing so long as it is done with due respectas a salutation to the motherland and proper decorum ismaintained.”

25. On a careful reading of the above provision, it is clear that thesaid Order states that it is not possible to give an exhaustive list of theFoccasions. It further lays down that there is no objection to the singingof the National Anthem accompanied by mass singing so long as it isdone with due respect as a salutation to the motherland and maintenanceof the proper decorum. Thus, three aspects are obvious: First the NationalAnthem is not only to be respected, but it is a respect as a salutation tothe motherland; second, the list of occasions cannot be exhaustivelyGstated; and, third, proper decorum has to be maintained when the NationalAnthem is played or sung.

26. At this stage, we may refer to the Order/Notification dated5[th] December, 2017. It is as follows:- H

SHYAM NARAYAN CHOUKSEY v. UNION OF INDIA& OTHERS [DIPAK MISRA, CJI]

“ORDER

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

It has been decided to constitute an Inter-MinisterialCommittee under the Chairmanship of Additional Secretary(Border Management), Ministry of Home Affairs, withrepresentatives (not below the rank of Joint Secretary) from thefollowing Ministries/Departments to give recommendationsregarding regulation of playing/singing of National Anthem and tosuggest changes in the Prevention to Insults to National HonourAct, 1971 or in the Orders Relating to the National Anthem ofIndia.

A

B

C

D

E

F

G

H

A2. 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-MinisterialCommittee has been given the responsibility to make recommendationsfor regulating the playing/singing of the National Anthem and to suggestBchanges in the 1971 Act or in the Orders relating to the National Anthemof India.

28. We may presently travel to the past. This Court in Bijoe2Emmanuel and Othersvs.State of Kerala and Others (in paragraphs9 and 10) has also emphasized on respect to the National Anthem. WeCmay hasten to add that it sustained the right of the petitioner therein, butyet observed that a person who stands up respectfully when the NationalAnthem is sung, is showing proper respect. Thus, the stress is on respectwhen the National Anthem is sung or played.

29. We may at this stage reproduce the Statement of Objects andDReasons of the 1971 Act, as the same has been stressed by Mr. AbhinavSrivastava, learned counsel for the petitioner. It reads as under:- “STATEMENT OF OBJECTS AND REASONS

Cases involving deliberate disrespect to National Flag, theNational Anthem and the Constitution have come to the notice inEthe recent past. Some of these incidents were discussed in boththe Houses of Parliament and members expressed great anxietyabout the disrespect shown to the national symbols. Governmentwere urged to prevent the recurrence of such incidents. Disrespectto the National Flag and the Constitution or the National AnthemFis not punishable under the existing law. Public acts of insults tothese symbols of sovereignty and the integrity of the nation mustbe prevented. Hence the Bill. The scope of the law is restrictedto overt acts of insult to and attack on, the national symbols byburning, trampling defiling or mutilating in public. It is not intendedto prohibit honest and bona fide criticism of the symbols, andGexpress provisions to this effect have been made in the Bill.”

30. When we consider the perspectives put forth before uspronounced in their own way, we have no shadow of doubt that one iscompelled to show respect whenever and wherever the National Anthem H2 AIR 1987 SC 748

is played. It is the elan vital of the Nation and fundamental grammar ofbelonging to a nation state. However, the prescription of the place oroccasion has to be made by the executive keeping in view the conceptof fundamental duties provided under the Constitution and the law.

31. In view of the aforesaid, we think it appropriate that theCommittee should comprehensively look into all the aspects. Mr. K.K.Venugopal, learned Attorney General for India has submitted in the courseof argument that the petitioner can give suggestions by way ofrepresentation to the Committee. Mr. V.K. Biju and Ms. Nanita Sharma,learned counsel and Mr. Sanjeev Bhatnagar, the applicant in-person canalso give suggestion in this regard. When we say suggestions, we meanthat suggestions shall only relate to the National Anthem and nothingelse.

32. Having said that, the issue remains for continuance of theinterim order or modification of the same. As submitted by Mr. Venugopal,learned Attorney General, the playing of the National Anthem in thecinema halls on the screen may not be made mandatory and the word“shall” may be substituted with “may” until a final decision is taken bythe Committee and, thereafter, by the Central Government. Needless toemphasize, the discretion vests with the Central Government and theyshall take a decision uninfluenced by the interim order as clarified in ourorder dated 23[rd] October, 2017.

33. In view of the aforesaid, we do not intend to keep the writpetition pending and dispose of the same with the following directions:-

(i) The Committee appointed by the Union government shall submitits recommendations to the competent authority in terms ofthe Notification dated 5[th] December, 2017, for follow up action.

(ii) The order passed on 30[th] November, 2016, is modified to theextent that playing of the National Anthem prior to thescreening of feature films in cinema halls is not mandatory,but optional or directory.

(iii) Since the Committee constituted by the Union government islooking into all aspects of the matter, it shall make itsrecommendations uninfluenced by the interim directions ofthis Court, as clarified in our order dated 23[rd] October, 2017.

A

B

C

D

E

F

G

H

ASimilarly, the competent authority shall in taking its decision(s)not be constrained or influenced by any of the interimdirections.

(iv) Citizens or persons are bound to show respect as requiredunder executive orders relating to the National Anthem ofBIndia and the prevailing law, whenever it is played or sungon specified occasions.

(v) The exemption granted to disabled persons shall remain inforce till the final decision of the competent authority withregard to each occasion whenever the National Anthem isCplayed or sung.

34. The writ petition is, accordingly, disposed of. There shall beno order as to costs.

D

Ankit Gyan

Writ Petition disposed of.

E

F

G

H