Deja Vu? Justice Dipak Misra, MP High Court and today’s #National Anthem order

Allegations of judicial overreach against the Supreme Court of India are nothing new. Since the era of PILs began in the 1980s, discussions and debates around separation of powers and judicial activism have dominated the discourse surrounding the apex court of the country..Recently, the Attorney General of India and a sitting judge also engaged in a minor verbal duel over the same issue. Despite these, the Supreme Court today passed an interim order which has received a lot of attention on social media and elsewhere for precisely this very issue..The Court has directed that all cinema halls in the country will have to play the Indian National Anthem before every movie and that the National Anthem shall not be commercially exploited “to gain any financial advantage”..The order was passed today by a Bench presided by Justice Dipak Misra in a petition filed by one Shyam Narayan Chouksey, who has sought a bar on commercial exploitation of the National Anthem..What is interesting and co-incidental, however, is that 13 years ago, the same petitioner had moved the Madhya Pradesh High Court citing a strikingly similar issue. His petition in the High Court pertained to a scene in the movie Kabhi Khushi Kabhi Gham. As in the Supreme Court, Chouksey had objected to the “commercial use of the National Anthem” in the movie. He was also affected by the fact that when National Anthem was played as part of the movie, the audience had refused to stand up..The MP High Court, in that case, had ruled in favour of Chouksey and directed that the film shall not be shown in any theatre, unless the scene which depicts the Anthem is deleted..However, the similarities do not end there. The Bench which passed the order in that case was presided by none other than Justice Dipak Misra..Moreover, the judgment delivered by the High Court in 2003 also echoes the same sentiments which are reflected in today’s brief order. And it is as verbose as any of Justice Misra’s other judgments..On the National anthem as a symbol of patriotism, the High Court judgment says,.“National Anthem as has been indicated is the symbol of history, unity, and pride…The national anthem is pivotal and centripodal to the basic conception of sovereignty and integrity of India. It is the marrow of nationalism, hypostasis of patriotism, nucleus of national heritage, substratum of culture and epitome of national honour.”.Both today’s Supreme Court order and the High Court judgment, refer to Article 51A of the Constitution. The High Court judgment says,.“Many an eminent jurists on many an occasion, opined that fundamental rights enshrined in part III of the Constitution of India have inbuilt obligation therein. To elaborate: it has been expressed that rights and duties co-exist. Article 51A was brought by an amendment not to deviate from the path or pave the way of transgression of the national value and unitedly stand together to re-construct the nation as an ideal one where a citizen does not claim to enforce his right but also solemnly adhere to perform the duty. The Constitution casts a duty on every citizen to abide by the Constitution and respect its ideals and institution and national flag and national anthem.”.Another noteworthy aspect of the High Court judgment pertains to another debate that has assumed significance in recent times: the debate on what is anti-national..“National anthem is the symbol of our history, sovereignty, unity, pride and honour. Any person who shows disrespect to the national anthem in a way, has to be regarded involved in anti-national activity. ….Quite apart from the above the Censor Board has to ensure that the medium of film remains responsible and sensitive to the values and standard of the society. The Board has to see that the public order is not in danger. The Board is required to see anti-national attitude is not presented. It is the obligation of the Board that sovereignty and integrity of India is not called in question.”.The matter had gone in appeal to the Supreme Court. A 3-judge Bench of the Supreme Court had allowed the appeal and set aside the order of the High Court. The Supreme Court had relied on certain instructions issued by the Central government in this regard. According to those instructions when,.“national anthem which is exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is not expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the national anthem.”.Chouksey had then filed a review petition against the same. In the review, the Court noted that the questions of law arising in the case have “far reaching implications” and need to be considered by the Court. The Court thus, recalled its 3-judge Bench judgment except to the extent concerning the certification of film. However, when the matter came up for hearing, Chouksey was not represented in court. Hence, the Court disposed of the case while observing that the “questions of law would remain open”. The certification of the film as decided by the 3-judge Bench, was maintained..Coming to the petitioner, who exactly is Shyam Narayan Chouksey?.The judgment of the MP High Court sheds some light on this..“The petitioner is a member of certain social and spiritual organisations and has taken upon himself the burden of canvassing national temper and launch a campaign, in the name of the ‘Jeevan Jagriti Prayas’ to inculcate national spirit amongst people.”.Justice Dipak Misra, the judge who presided the hearing in both the cases, will be the Chief Justice of India after the retirement of Justice JS Khehar. He will be at the helm of the Supreme Court from August 28, 2017 to October 2, 2018..Read the Madhya Pradesh High Court judgment here..Image taken from here.