Shyam Narayan Chouksey V.

Union Of India
Case Analysis

SUBMITTED BY:

Arushi Bisht – PRN 1610324310

Division-D

Symbiosis Law School, Hyderabad

Symbiosis International (Deemed University), PUNE

ON

25th January 2018

Under the guidance of

The Project entitled “Shyam Narayan Chouksey V. Union Of India” submitted to the
Symbiosis Law School, Hyderabad for Case Study: Interlinking and Hyperlinking as part of
internal assessment is based on my original work carried out under the guidance of Ms.
Taskeem Rafat, from 2nd January 2018 to 15th February, 2018. The research work has not
been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly
acknowledged.

We understand that we could be held responsible and accountable for plagiarism, if any,
detected later on.

ARUSHI BISHT

February 16, 2018

This research was supported by Ms. Taskeem Rafat. We would also like to thank all my
colleagues from Symbiosis Law School Hyderabad who provided insight and expertise that
greatly assisted the research, although they may not agree with all of the
interpretations/conclusions of this paper.

I would like to thank Ms. Taskeem Rafat for assistance with particular technique and
methodology for comments that greatly improved the research project.

I would also like to show our gratitude to my parents and other loving members of my life for
sharing their pearls of wisdom with us during the course of this research, although any errors
are my own and should not tarnish the reputations of these esteemed persons.
 Index

 Introduction…………………………………..01

 Facts…………………………………………..02

 Issues Raised………………………………….03

 Legal Arguments……………………………..03

 Legal Provisions………………………………06

 Judgement…………………………………….06

 Analysis………………………………………07

 Conclusion……………………………………08

 Bibliography………………………………….10
 Shyam Narayan Chouksey V. Union Of India
Case Analysis
Introduction
“Sitting or Standing” at the time of National Anthem in the cinema hall has become debatable
issue in India. The national anthem which signifies that despite differences in culture,
traditions, religion and a language, India is united under one flag has become bone of
contention in present day scenario.” The national anthem, which is significant in uniting
people and reminding us that we stand and remain one under the Indian union, has become
burning question after the order passed by Hon’ble Supreme Court of India (henceforth SC)
in Shyam Narayan Chouksey v. Union of India, making it mandatory to stand for National
Anthem in cinema halls as a sign of respect. It has created a rift between people. Proponents
of the Order who come early to cinema halls argue that this will create a culture of patriotic
cohesion in the Indian masses while defeatists who generally come after National Anthem
adopt the argument that singing out national anthem in a space meant for entertainment is
arbitrary and non-justifiable which does not.
In the aforesaid case the order given by Supreme Court of India is something that cannot be
digested by the society. In the words of SC, the citizens of the country “are duty bound to
show respect to National Anthem” as the anthem is a “symbol of constitutional patriotism”.
The Court uses the terms “national identity” and “national integrity” along with
“constitutional patriotism” without analysing the meaning and import of any of these terms.
The Hon’ble SC misunderstands the doctrine of constitutional patriotism with popular belief
of patriotism and thereby giving the order in mistaken opinion.
Patriotism, in popular sense has been used to refer modalities of a breed of beliefs in national
solidarity, unity or cohesion that is characterized by membership to nation. These belief,
sentiments and culture of patriotism rest on obscure suggestion of ethical and substantive
norms while the doctrine of constitutional patriotism focuses on regulating the procedural
frame of public deliberation by strict adherence to constitutional principles.
In stressing the need for the promotion of ‘constitutional patriotism’, the Supreme Court
seems to have pre-supposed the existence of other kinds of patriotisms and to have also
underscored the preferability of ‘constitutional patriotism’ to the other kinds, even if the
Apex Court did not go as far as to deride or denounce the way ‘nationalism’ and ‘patriotism’
is being used as a stick to beat people into submission to the popular will, or, rather, to
something that is regularly paraded as the ‘popular will’. However, it is the desirability and
the constitutionality of the enforcement of nationalism or patriotism of any kind that the
Court might have erred in analyzing.
 Facts
The SC in the present case relied extensively on Article 51(A) in its judgment. Article 51(A)
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. Article 51(A) is
part of fundamental duties which is unenforceable and broadly constructed duty. Through a
series of case laws in Indian Courts, it is clear that there is an obligation upon Hon’ble
Supreme Court to balance fundamental duties against enforceable fundamental rights. In
aforesaid case the Hon’ble Supreme Court has given absolute primacy to fundamental duties
and neglected basic fundamental rights which disturbed the harmony and balance of the
Constitution which is basic characteristic of Constitution. The SC in the present case relies on
The Prevention of Insult to National Honour Act, 1971 to its decision. Section 3 of the Act
states that 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. This is
again a codification of negative duty, a duty against disturbance or prevention of singing of
National Anthem. However the legislature has neither codified any duty of respect nor
mentions any such duty anywhere in Constitution Scheme. Hence in the absence of discourse
surrounding Scheme, patriotism advocated by the Hon’ble Supreme Court lacks the idea of
Constitutional Patriotism.

The SC count on above Article 51(A) of Indian Constitution and Prevention of Insult of
National Honour, 1971 to affirm their decision but when we read these provision together,
these provision criminalize active disturbance in an assembly that is voluntary singing the
national anthem which is quite different from the positive duty that the Hon’ble Supreme
Court codifies in its Judgement. In the aforesaid case the Hon’ble SC does not make
categorical difference between refusal to stand up for national anthem as an active act of
disturbance as opposed to passive act of silence in Bijoe Emmanuel case. In this way the
Hon’ble Supreme court deviates from the position taken by Supreme Court in Bijoe
Emmanuel v. State of Kerala 1. The Hon’ble SC arbitrary made an order which does not add
dignity to national anthem rather it creates drastic consequences.

On 23rd April 2017, Spice jet plane SG 1044 accidently played national anthem while
landing which created a dilemma “does passengers must stand to show respect or be seated”
and does this place is correct for showing the respect. If the order would be that people in
aircraft have to show respect when National anthem is played then it becomes obligation for
those people to stand up for National Anthem even if they don’t want. Similarly the Hon’ble

1
1987 AIR 748, 1986 SCR (3) 518
Supreme court has only compelled others to show respect in cinema hall but this compelling
may doesn’t add any dignity to the national anthem because cinema halls were not the correct
place to show respect.

Briefly touching upon the reasoning behind the order, the Supreme Court said, “The
directions are issued, for love and respect for the motherland is reflected when one shows
respect to the National Anthem as well as to the National Flag. That apart, it would instill the
feeling within one, a sense committed patriotism and nationalism.”

Furthermore, the Court seems to have ignored the fact that it is one thing for cinema halls to
play the National Anthem, and quite another for them to be legally obliged to do the same,
and yet another to be mandated by a judicial fiat to do so. And it is in the rather obvious
distinctions among the three that a very complex interplay of desirability, legality and
constitutionality of the enforcement of the concepts like nationalism and patriotism operates.
The general and generally inviolable principle of legal and constitutional propriety is that no
matter how desirable a result might be, it cannot be allowed to be achieved by extra-legal or
extra-constitutional methods, and at the very heart of the Indian Constitution sits the Doctrine
of the Separation of Powers, which is part of its Basic Structure, and for that reason cannot be
touched to its detriment even by a constitutional amendment.

The Doctrine of the Separation of Powers, as enunciated by several constitutional Benches

Issues/ Legal Arguments

(a) The Prevention of Insults to National Honour Act, 1971 (for short, the 1971 Act') de
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 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.2

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 Anthem is being
played or sung; to specify what will constitute disrespect and abuse of the National Anthem;
and to restrain the use of the National Anthem for any commercial exploitation or to gain
financial advantage in any manner.
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.
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

2
THE NATIONAL ANTHEM ORDER – Bad in Law, Bad in Fact
 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.
After issuing the directions, this Court noted the submissions of the learned Attorney General
which were to the following effect:-
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 Anthem as well as to the National Flag. That apart, it would instill the
feeling within one, a sense committed patriotism and nationalism.
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 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 Ors3. but only to regulate the ingress and
egress during the period while the National Anthem is played.
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 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.

Legal Provision
 'The Persons with Disabilities (Equal Opportunity Protection of Rights and Full
Participation) Act, 1995
 Article 51(A) of Indian Constitution and Prevention of Insult of National Honour,
1971
 Prevention of Insults to National Honour Act, 1971
 The Doctrine of the Separation of Powers

Judgement
Constitution of an Inter-Ministerial Committee on playing/singing of the National Anthem.
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. The Committee will submit its recommendations in six
months. This issues with the approval of the Competent Authority. It is perceptible from the
3
[(2011) 14 SCC 481]
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.
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.

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.
The writ petition is, accordingly, disposed of. There shall be no order as to costs.

Analysis
“People go to the movie halls for undiluted entertainment. Society needs entertainment,”
Chandrachud added. “You do not have to stand up for the national anthem in cinemas to
prove your patriotism.” He said people are afraid of being labelled anti-national if they
oppose the present rule.
Similarly, In the recent controversial Supreme Court judgement of Shyam Narayan Chouksey
v. Union of India, the Apex Court held that “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.” In light of this, it is crucial to analyse the judgement and its legal components. The
Court relies on Article 51(A) to invoke a fundamental duty and places reliance on the
Prevention of Insults to National Honour Act, 1971 (‘PINHA’). Article 51(A) 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. Section 3 of the PINHA Act
states that 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. Hence,
read together, these provisions criminalize active disturbance in an assembly that is
voluntarily singing the anthem- quite different from the positive duty that the court codifies in
this judgement. This is a clear deviation from the position taken in the Bijoe Emanul case of
1987, where the Supreme Court had an opportunity to consider a similar question that arose
from the suspension of three students from a school for refusing to sing the national anthem
as it went against the tenets of their faith. The Court held that that the students were within
their rights as the ‘right to remain silent’ also constituted an integral part of the right to free
speech under Article 19(1)(a). As renowned legal scholar Lawrence Liang notes, then, the
key difference between the Bijoe Emanuel judgment and the interim orders passed in the
current case is the emphasis in the former on legal reasoning and its restraint in passing off
sentiment as law. In this case, the Court does not make the important categorical distinction
as required between a refusal to stand up for the anthem as an active act of disturbance as
opposed to a passive act of silence. Instead, it enshrines a positive duty and states that 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.
In doing so, the courts attempt to draw from Habermas’s theory on ‘constitutional
patriotism’- which, in a reductive sense, refers to the normative value of collective loyalty to
constitutional principles. However, constitutional patriotism is based on a culture derived
particularly from constitutional principles. In the present case, it is unclear which
constitutional principles the court is invoking. If the court is indeed relying solely on Article
51(A), it needs to examine the clash of Article 51(A) with the right to free speech under
Article 19. In the absence of this, the court fails in its duty to instill a culture of constitutional
patriotism as contemplated by Habermas, as the discourse generated by the court is not truly
based on an examining conflicting constitutional principles, but merely from the sentiments
of the judge in this case, as Liang notes.
Hence, as critics of the judgement have noted, we must question the power of the court to
“legislate” on matters outside the Constitution without a proper examination of the basic
principles the constitution embodies. In articulating a two-pronged constitutional duty, the
courts have made a major leap from the earlier position of the court from the Bijoe Emanuel
case and made a certain form of patriotism the law of the land- showing no restraint as a court
on the boundaries between “creating a law” based on sentiment and merely protecting
constitutional principles.
 Conclusion
The national anthem which signifies that despite differences in culture, traditions, religion
and a language, India is united under one flag, but this flag has become bone of contention.
Standing or sitting in cinema hall during National Anthem became prestigious issue for
whole nation. The issue which has no substance has been carry forward by Our Hon’ble
Supreme Court of India. The reasoning on which Petitioner filled the PIL was something else
and the decision by SC is something else. In my opinion the order was not through SC but the
thinking of presiding judge. Though SC want to arose the feeling of patriotism which is good
idea but the method and reasoning given SC was ambiguous. The Hon’ble SC misinterpreted
the doctrine of Constitutional Patriotism, it deviates from precedents by Filing to recognize
the importance of fundamental rights in constitutional frame work. It creates positive duty of
compliance and respect, unlike the negative duty specified in statutory framework that
prohibit disrespect, but does not codify a particular form of demonstrating respect. Hence it
become crucial for the Court to re- examine its reliance on the idea of Constitutional
Patriotism in future because cannot ignore the importance of fundamental rights and
adherence to the basic mandate to the constitution. In the Patriotic fervour, the Court runs the
risk of disregarding the importance of individual rights and liberties that forms the back bone
of the Indian democracy.
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