Supreme Court judge Justice D.Y. Chandrachud on Monday lashed out at the logic behind the November 30, 2016 order mandating people to stand up when the National Anthem is featured in cinema halls before every show, saying there is no need for an Indian to "wear his patriotism on his sleeve".
Justice Chandrachud was part of a three-judge Bench, led by Chief Justice of India Dipak Misra, hearing a petition filed by Kodungalloor Film Society in Kerala to recall the November order.
"Next thing will be that people should not wear t-shirts and shorts to movies because it will amount to disrespect to the National Anthem... where do we stop this moral policing?" Justice Chandrachud said.
Incidentally, it was a Bench led by Justice Misra that passed the 2016 order. Justice Misra had reasoned that the practice would "instil a feeling of committed patriotism and nationalism".
Now, sitting by Chief Justice Misra's left, Justice Chandrachud referred to the Flag Code to observe that "there is no mandate that people should stand up when the National Anthem is sung in a cinema hall. This is obviously because a cinema hall is a place for entertainment... people go to cinema halls for undiluted entertainment. Society needs entertainment".
In 2016, Justice Misra's Bench described the playing of the anthem in cinema halls as an opportunity for the public to express their “love for the motherland”.
Justice Chandrachud observed on Monday, "You don't have to stand up at a cinema hall to be perceived as patriotic."
At one point, Justice A.M. Khanwilkar reacted to lawyers' submissions that the National Anthem is played in cinema halls in States like Maharashtra and Chhattisgarh, saying if it is good for Maharashtra, it may be good for other States too.
Justice Chandrachud, however, said he had witnessed people leaving the cinema hall when the National Anthem is played after the show. "Maybe that was why it was stopped... because of the disrespect," he observed.
The judge was responding to submissions by Attorney General K.K. Venugopal in support of the 2016 order.
Mr. Venugopal submitted that playing the National Anthem in cinema halls and standing up as a mark of respect for it fosters a sense of unity in a country diverse in caste, religion and regions.
The Attorney General submitted that playing the National Anthem would be a "unifying force" so that "when people come out of the theatre they will believe that we are all Indians".
He said, "Its purpose is the loyalty of the population, to neutralise divisiveness, foster unity in diversity. It is the duty of every citizen under Article 51-A (a) to abide by the Constitution, respect its ideals and institutions, the National Flag and the National Anthem."
But Justice Chandrachud countered that Article 51A was very broad. Among the list of fundamental duties, the Article, for example, required the citizens to "develop scientific temper, humanism, spirit of inquiry".
"Are we [Supreme Court] supposed to enforce all this? As the government, you have the power. You take the call. Why should we take your burden?" Justice Chandrachud asked Mr. Venugopal.
"If the court is supposed to enforce respect for the National Anthem on citizens, it should also enforce the other fundamental duties in Article 51A? You know what is good for the goose is also good for the gander, right?" Justice Chandrachud told Mr. Venugopal.
When one of the lawyers said some missionary schools refused to play the National Anthem, Justice Chandrachud, who authored the majority verdict declaring privacy as a fundamental right, retorted: "I studied in a missionary school. We sang both the National Anthem and 'Our Father'. For us both were equally important.”
Justice Chandrachud said cultural and social values were imbibed from parents and teachers and not what courts enforced through orders.
The judge indicated that it was for the government to take the call on whether it wants the Flag Code to be amended to make it mandatory for cinema halls to play the anthem.
Towards the end of the hour-long hearing, Chief Justice Misra suggested a change in the language of the 2016 order, which had the effect of making the playing the anthem optional.
However, Mr. Venugopal said the government would take a call.
Finally, the court left it to the discretion of the government to bring out any notification, if necessary, to make or not make the playing of the National Anthem mandatory in cinema halls. The case was posted for hearing on January 9, 2018.
The November 2016 order had come on a writ petition filed by Shyam Narayan Chouksey. The petition, which referred to the Prevention of Insults to National Honour Act of 1971, had claimed that the “National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law”.