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Published : March 05, 2017 | Author : Madhavi Shukirbaba Sarvade
Category : Constitutional Law | Total Views : 4080 | Rating :

Madhavi Shukirbaba Sarvade
Hi...my name is Madhavi Sarvade, I am Ph.D Student at Shivaji University, Kolhapur.

Debate over Sitting or Standing at Cinema Hall Whether Violation of Right to freedom of Speech and Expression

Abstract: This article focuses attention on the directions of the Supreme Court in “Shyam Narayan Chouksey v. Union of India 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 as a part of their “sacred obligation”. A bench of Justice Dipak Misra and Amitava Roy added that movie screen shall have the image of the national flag when the anthem is being played and the doors of the halls will remain shut during the anthem so that no disturbance is caused. These directions were actually issued, for love and respect for the motherland is respected when one shows respect to national anthem as well as to national flag. This would instill the feeling of oneness and committed patriotism and nationalism; Section 3 of the prevention of insult to national honour Act, 1971 says “Whoever intentionally prevents the singing of the 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.”; however the directions are silent on “if people don’t stand”

Some people feel its violation of their right to freedom of speech and expression. So, the objective of this article is to discuss the constitutionality of this decision.

“Sitting or standing” at the time of national anthem been played in cinema hall has become debatable subject in India. A video of people who were being allegedly asked to leave cinema hall in Mumbai when they refused to stand for national anthem got viral before certain days; however this issue is not limited only to India. The attitude of Colin Kaepernick who refused to stand prior to the start of play is also not unknown to the world. At that time he told to NFL media in August 2016 that he is not going to stand up to show pride in a flag for a country that oppresses black people. These two incidents are not completely similar first incident shows the negligence of people or lack of awareness in complying with the sacred duty to stand for national anthem and in second incident it shows the dissatisfaction about the country.

Supreme Court of India has given directions to play national anthem before playing feature film in cinema halls and citizen shall be mandatory duty bound to stand for it So, the question arises, Whether this decision/direction violate the right to freedom of speech and expression which has been embodied under Article 19 (1)(a) and the reason behind these directions given by Supreme Court.

Constitutionality of the Direction by Supreme Court:

Constitution of India is the longest constitution of the world. It includes Fundamental rights (Part III), Directive Principles (Part IV), Fundamental Duties (Part IV-A). Fundamental rights are enforceable by the court of law. Directive principles are nothing but the directions taken by the state while formulating policies or plan for the development of the state and thereby nation. Even though Directive Principles are not enforceable by the court of law they are equally significant for the development of citizens.

The fundamental rights described under Article 19 are inalienable and enforceable in the court of law. Article 19 (1)(a) guarantees all citizens the right to freedom of speech and expression; however Article 19(2) imposes reasonable restrictions in interest of sovereignty and integrity of nation, friendly relations of foreign state, public order, decency or morality, contempt of court and defamation on right to freedom of speech and expression. Article 19(3) gives power to state to make laws to impose reasonable restriction on the freedoms conferred by Article 19. In this scenario if the Supreme Court has given directions regarding playing the national anthem before starting the film and made mandatory on people who has come to watch movie, should stand in respect. It is fully constitutional and everybody should follow it.

It is our foremost important duty to respect motherland, national flag, and constitution of India. Fundamental duties were introduced by the 42nd Amendment Act, 1976. Fundamental duties have been incorporated under part IV-A of the constitution of India which consists only one Article, Article 51-A.This Article has casted total eleven duties on the citizens of India. Some of the duties which spread nationality among the people are as follows:

Article 51- Fundamental Duties – It shall be the duty of every citizen of India-

(a) To abide by constitution and respect its ideal and institutions, the national flag and national anthem.

(b) To cherish and follow the noble ideals which inspired our national struggle for freedom.

(c) To uphold and protect the sovereignty, unity and integrity of India

Rights and duties are intended to serve as a constant reminder to every citizen that while the constitution specially conferred on them fundamental rights, it also requires citizens to observe certain basic norms of democratic conduct and democratic behavior.

Since the time immemorial the emphasis in Indian Society in accordance with the dictates of the ancient scriptures has been on Individual’s “Kartavya”. This is performance of one’s duties towards society, the country and also towards one’s parents. Bhagavat Gita under Chapter “Karma Yoga” has given importance of performing duties. Prophet Hazrat Mohammad has said, “Love your country” it is a part of your faith. Even George Benard Shaw has said, “Patriotism is your conviction, that this country is superior to all others because you were born in it.

Article 29(1) of the Universal Declaration of Human Rights reads, “Everyone has duties to the community in which alone the free and full development of personality is possible”.

Judicial Approach:
The view of Hon’ble Supreme Court is significant on the issue of national anthem which was shown thirty years ago. Hon’ble Supreme Court has said in 1986, “No provision of law obliging anyone to sing the national anthem …our tradition teaches us tolerance, our constitution practices tolerance..let us not dilute it”

In August 1986, Hon’ble Supreme Court bench of Justice O.Chinnappa Reddy and M.M. Dutt had in Bijoe Emmanual & Others v. State of Kerala & Ors, granted protection to three children of Jehovas witness Sect, who didn’t join in singing of national anthem but stand respectfully at their school. The court held that forcing the children to sing national anthem is violation of their fundamental right to religion.

Same view was expressed in their judgment given by US Supreme Court in case of West Virginia State Board of Education V. Barnette in 1943. The US Supreme Court delivered a 6-3 opinion, holding that the free speech clause of the First Amendment to the US Constitution protected student from being forced to salute the American Flag.

Recently, a very landmark judgment has been pronounced by Hon’ble Supreme Court in “Shyam Narayan Chouksey v. Union of India. In this case the Public Interest Litigation was filed by Bhopal based activist on 24th July 2003. Mr. Shyam Narayan Chouksey had gone to watch the film “Kabhi Khushi Kabhi Gham” in the year 2003. When the national anthem was played in the movie, he stood up respectfully but he was the only one person, who stood up. Those behind him said he was obstructing their view, instead of standing up. They asked him to sit down. He got offended by this experience as also the “commercial use of the national anthem” in the film. Mr. Chouksey filed a PIL in Madhya Pradesh High Court in Jabalpur. A division bench agreed with his contention and banned screening of the film across India. This order was later stayed. Supreme Court (Coram of Hon’ble Justice Dipak Misra and Amitava Roy) gave the following directions to be scrupulously followed:

1. 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 persons involved in it either directly or indirectly shall have any commercial benefit or any other benefit.

2. 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 everyone present to show a due respect and honor. To think of a dramatized exhibition of the national anthem is absolutely inconceivable.

3. National anthem or a part of it shall not be printed on any object and never be displayed in such a manner at such places which 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.

4. All the cinema halls in India shall play the national anthem before the feature film starts and all present are obliged to stand up to show respect to the national anthem.

5. Prior to 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 door can be opened.

6. When the national anthem shall be played in the cinema Halls, It shall be with the National Flag on the screen.

7. The abridge version of the national anthem made by one for whatever reason shall not be played or displayed.

Hon’ble Supreme Court has further stated that, it is the sacred obligation of every citizen to abide by the ideals engrafted in the constitution. And one such ideal is to show respect for the national anthem and National Flag. The citizens of this country must realize that they live in a nation and duty bound to show respect to national anthem which is the symbol of the constitutional patriotism and inherent national equality.

Fundamental duties don’t lose its importance only because of the fact that there is no penal provision prescribed for not following them. Fundamental duties show the spirit of Indian Constitution. These are the values if followed carefully by each and every person. There will not be any need to claim fundamental rights. As, if nobody will violate others right why would somebody need to claim them again.

1. Rights and duties are two parts of the same coin. If we are aware about our fundamental rights we must follow the duties given under Article 51-A which spread national unity, integrity and brotherhood in one another. Every citizen has to remember one thing that he owes the duties to state; if he does not care for duties he does not deserve rights.

2. Value education should be given importance. The history teachers as well as parents should take responsibility to teach history to their children so passionately that each and every student should take interest in knowing the Indian history, its freedom struggle, & sacrifices given by freedom fighters. If they learn history properly they will surely feel proud about our country and follow the duties given under constitution of India and in future abide by constitution of India and respect our national flag and national anthem.

3. Interesting programmes should be arranged by media which shall create awareness about fundamental duties in the society.

4. On the occasion of celebration of Human Rights Day, Children’s Day, Independence Day, Republic Day, seminar and workshops should be arranged specifically on the subject like “Fundamental Duties”, national integration, unity. Majority of people know their rights but don’t know their duties or even though they know don’t follow them. So, it is very important to create such type of awareness.

5. Every citizen is expected to monitor his own code of conduct in democratic life, in these circumstances, if somebody is not ready to stand for national anthem other people should not create any type of law and order situation in the name of nationalism. We must remember that our constitution promotes peace, harmony and tolerance.

National integration cannot build by brick and mortar, by chisel & hammer. It has to grow silently in the minds and hearts of men.

India is the excellent example of “Unity in Diversity”. We have diversity in our religion, language, clothing, place of birth but one thing is which is common for all of us that all of us are the children of mother India or Bharat Mata. The feeling of oneness or patriotism can be created and maintained by showing respect to Indian Constitution, national anthem and national flag. To show this spirit we have to follow certain basic norms of democratic conduct and democratic behavior “Standing respectfully when the national anthem is being played or sung” is one of them.

Our Constitution has conferred us wide range of fundamental rights. But we should never forget that every right comes with the duty and it is obligatory on each of us to follow them with due care. For the enforcement of duties, it is necessary that it should be known to all this should be done by a systematic and extensive education of the people. This can be done by using mass media or making it part of syllabi & curriculum of education.

National anthem takes only fifty two seconds to play or sung. If these fifty two seconds creates oneness among all of us and takes us to journey of freedom struggle, remind us the sacrifices done by our forefathers we must stand respectfully for it and follow the direction given by hon’ble Supreme Court in “Shyam Narayan Chouksey v. Union of India.

# Indianexpress.com/article/india/india-news-india/supreme-court-cinema-halls-national-anthem-petitioner-shyam-narayan-choksey-not-with-any-political-party-4404215/(Updated on Dec 1, 2016, 11:40 Accessed on 3 Mar, 2017)
# Constitution of India, Part IV - A, Article 51- A
# Dr. D.N. Pandey, Constitutional Law of India, 52nd ed, Central Law Agency publication, 2015.
# Universal Declaration of Human Rights, Article 29
# Indiaexpress.com/article/explained/supreme-court-on--in-theater-national-flag-4403856/)(Updated: Dec 1, 2016, 11:39 IST)(Accessed on 24-2-17)
# 1987 AIR 748, 1986 SCR (3) 518
# 319 U.S. 624 63 S. Ct. 1178, 87 L. Ed.1628, 1943 U.S.
# AIR 2003, MP 233
# Indianexpress.com/article/india/india-news-india/supreme-court-cinema-halls-national-anthem-petitioner-shyam-narayan-choksey-not-with-any-political-party-4404215/(Updated on Dec 1, 2016, 11:40 Accessed on 3 Mar, 2017)
# Writ petition 855/2016


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