The Illegality of the Supreme Court’s National Anthem Order

In an order dictated today, a two-judge bench of the Supreme Court, headed by Dipak Misra J., directed all cinema halls across the country to play the national anthem before every film, along with the Indian flag on the cinema screen. The Court then directed cinema-goers to stand up to “show respect” while the anthem was being played, and – apparently upon a suggestion from the Attorney-General – that the doors of the cinema hall be locked while the anthem was being played. A number of other rather vague “interim reliefs” were also granted.

What passes for “reasoning” in this “order” ought not to be dignified with legal analysis. I will say no more about it. And the case for the opposition can scarcely be better made than Justice Jackson’s opinion in West Virginia vs Barnette. However, there is a deeper issue that goes beyond the behaviour of this particular bench of the Supreme Court, and merits some examination. This is something that I have referred to before as “judicial censorship“. Judicial censorship is suo motu judicial action restricting the freedom of speech, in the absence of an existing law. In my view, judicial censorship is not contemplated by the Constitution, and judicial orders that engage in this form of censorship are illegal and void.

Article 19(1)(a) guarantees to all citizens the freedom of speech and expression. Article 19(2) allows speech to be restricted only by an existing law or a law made by the State. It does not contemplate restriction upon free speech through any other mechanism.

Are judicial orders “law” for the purposes of Article 19(2)? Article 13(3) of the Constitution, which defines “law” for the purposes of Part III as “any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law“, when read noscitur a sociis, seems not to include judicial orders. Now, it may be argued that various judgments have held that Article 141 of the Constitution speaks of the “law” declared by the Supreme Court, and that consequently, Supreme Court judgments or orders constitute “law”. That is true, but textually, Article 141 only envisions the Supreme Court “declaring” law; more importantly, however, it does not follow that the word “law” used in Article 141 carries the same meaning as “law” under Article 13/19(2). To start with, textually, Article 13(3) prefaces its definitional terms with the phrase “In this article… law includes…” The definition, therefore, is specific to Part III of the Constitution.

Secondly, if Supreme Court judgments and orders were to constitute “law” under Article 13, then every such judgment or order would be subject to a further fundamental rights challenge. Dipak Misra J.’s order, for instance, could be challenged in a separate writ petition by either the cinema owners or cinema-goers as a violation of Article 19(1)(a) of the Constitution. Perhaps this might not be such a bad thing, but in Naresh Mirajkar vs State of Maharashtra, a nine-judge bench of the Supreme Court categorically held that this could not be done.

In Mirajkar, the High Court of Bombay passed an order in a libel case, directing that certain evidence tendered in Court could not be made public. Aggrieved journalists moved the Supreme Court under Article 32, arguing that this order violated their Article 19(1)(a) right to freedom of speech and expression. By an 8 – 1 majority, the Supreme Court dismissed their petition. Gajendragadkar CJI’s majority opinion, and the concurring opinions of Sarkar, Shah and Bachawat JJ differed on some points, but all agreed that a judicial order (of the High Court) could not be challenged in writ proceedings under Article 32 of the Constitution. The majority and concurring judgments engaged in a detailed analysis of whether the High Court had jurisdiction to pass the order that it did; having found that it did so, they then held that there was no scope for an Article 32 challenge. Shah J.’s concurring opinion was particularly clear on underlying reasons for this:

“In granting relief to a party claiming to be aggrieved or in punishing an offender, the Court in substance declares that the party who claims that he is aggrieved has or has not a certain right and that the right was or was not infringed by the action of the other party, or that the offender by his action did or did not violate a law which prohibited the action charged against him. Such a determination by a Court therefore will not operate to infringe a fundamental right under Art. 19.

He then observed:

The argument that the inherent power of this Court which may have existed prior to the Constitution must still be tested in the light of Art. 19(2) of the Constitution does not require any serious consideration. If a plea of infringement of a fundamental right under Art. 19 against infringement by a judicial determination may not be set up, in petition under Art. 32, it would not be necessary to consider whether on the footing that such a right is infringed by a judicial determination of the rights of the parties or an order made in aid of determination that the law which confers such inherent power of the Courts is within Art. 19(2). The function of Art. 19(2) is to save laws-existing laws or laws to be made by the State in future-which otherwise infringe the rights under Art. 19. Where the action is such that by its very nature it cannot infringe the rights in Art. 19(1) of the Constitution, an investigation whether the law which authorises the action falls within cl.(2) of Art. 19 may not be called for.

The Supreme Court cannot have it both ways, however. It cannot both curtail speech by equating judicial opinions to “law” under Article 19(2), and simultaneously insulate itself from its decisions then being challenged in writ proceedings for violating Article 19(1)(a) of the Constitution. Admittedly, the Majority and Sarkar J. did not expressly hold that judicial opinions “could not” infringe 19(1)(a) (in fact, both of them went into the merits of the order vis-a-vis 19(1)(a)) – however, having found at the threshold that there was no 19(1)(a) violation, they did not examine the question of whether Article 19(2) was applicable to such cases at all.

There is a deeper reason, however, why judicial censorship violates the Constitution, and that has to do with the separation of powers. As the Supreme Court held in Kharak Singh vs State of UP, if the State action is to be upheld against Part III claims, the State must “satisfy that… the fundamental rights are not infringed by showing that there is a law and that it does amount -to a reasonable restriction. within the meaning of Art. 19 (2) of the Constitution.” The phrase “there is a law” is crucial, because it sets up a threshold safeguard for the protection of fundamental rights. Plain executive action cannot infringe fundamental rights, even if it is “reasonable” within the meaning of Article 19(2). This is because “law”, which ultimately traces its authority to Parliament (whether it is in the form of legislation, or delegated law-making, such as rules or regulations), envisions a public, deliberative process during which – presumably – civil liberties concerns are taken into account at the time of framing. And  after the State makes the law, the Constitution envisages a second layer of safeguards, in the form of judicial review. After the State makes the law, aggrieved citizens can approach the Courts arguing that it violates their fundamental rights.

By engaging in direct judicial censorship, the Court short-circuits this crucial two-step safeguard, and bypasses Parliament altogether. By directly restricting speech, it ensures that the deliberative process envisaged by the Constitution when it requires the State to “make a law” under Article 19(2) is rendered chimerical. This is why such judicial action violates the separation of powers.

Lastly, it may be argued that the Court’s order is justified under Article 142 of the Constitution, which authorises the Court to pass any decree or order “necessary for doing complete justice in any cause or matter pending before it.” However, Article 142 also specifies that this must be done in “the exercise of its jurisdiction.” If my argument is correct, the Court does not have the jurisdiction to restrict speech in the absence of a law, simply by passing orders. And Article 142 cannot be a carte blanche to do anything that takes judicial fancy on any given day.

Writing about the Habeas Corpus judgment, H.M. Seervai wrote that “ordinary men and women would understand Satan saying ‘Evil be thou my good,’ but they were bewildered and perplexed to be told by four learned judges of the Supreme Court, that in substance, the founding fathers had written into the Emergency provisions of our Constitution ‘Lawlessness be thou our law.’” If Mr. Seervai was alive today, I wonder what he would think of judicial orders that do not even seem to consider whether there is a legal basis for what they seek to accomplish.

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39 Comments

Filed under Free Speech, judicial censorship

39 responses to “The Illegality of the Supreme Court’s National Anthem Order

  1. Why did no sensible person/s intervene in this matter? Our civil liberties cannot be left in the hands of the petitioner in this case and the Modi administration. One would have expected the AG to stand up for freedom of speech, but the BJP will probably publicize this order as a “nationalist” achievement of their government.

    • Adv Rudra Sinha

      The Hon’ble SC is taking decisions not so important instead of the more socially detrimental issues.
      The freedom of speech and expression as envisaged under Article 19 also envisages the freedom to not speak. Patriotism comes from heart and cannot be forced.

    • s.roy choudhury

      Before handing over the matter to the Civil Society it needs to be understood that the author has deliberately suppressed the interpretation given by the Hon’ble Supreme Court regarding the jurisdiction of the Supreme Court in the Constitution. Art.142 gives plenary power to the Hon’ble Supreme Court, which either the author is unaware of or has intentionally suppressed. It is quite incomprehensible how chanting the national anthem of one’s own country can be violate of one’s freedom of speech.Challenging Judgments of Hon’ble Supreme Court without fathoming its depth is quite fashionable nowadays.

      • Ajay Joshi

        Why should , then, this order be restricted only to cinema’s ? Why not every time one enters a railway station, or a government office or before an airline flight takes off or one decides to eat paav bhaji ? Chanting of the national anthem is not violative of the freedom of speech but being forced to chant the national anthem is certainly not a sign of freedom.

  2. Did the Supreme Court set aside J. Dipak Misra’s 2003 MP High Court decision on the national anthem? See https://indiankanoon.org/doc/1836522/ and https://indiankanoon.org/doc/862307/

  3. If, this national anthem order made applicable to all cinema halls and before all kind of films with any certificate like U or A; will it not be disrespect to national anthem?

  4. loonybird

    btw, wtf is constitutional patriotism? *befuddled to say the least*

    • It’s a rather sophisticated German doctrine in constitutional philosophy.

    • Doctrine by this chap called Habermas. From my admittedly limited reading, what he suggested was that liberal democratic principles should be celebrated and valued in a pluralistic society in order to create a nationalistic identity that would bind different people (through the collective prioritisation of these values). However, using that to defend the obligation to play and stand for the national anthem before a film screening seems pretty reductive to say the least. Add to that the fact that making people do this and not letting them exercise their freedom to choose otherwise seems to contradict liberal democratic principles, imo.

  5. Pingback: Coming soon to Indian movie theaters: court-mandated displays of nationalism | AFSDP

  6. benny

    a nation cannot force its citizen to respect it’s symbols.

  7. lovely.. I was just sitting down to do a legal analysis of the order. But it will be difficult to better this analysis in one night. So perhaps I’ll write an emotional, generic piece and over the week write a legal piece.

    I follow your blog regularly.

  8. Aman Pandey

    My friend and I were discussing your post and he made an observation that the structure of your argument is a bit perplexing. He says so because we can in the first place argue that the judiciary won’t qualify as a state for the purposes of Art. 12 (Ref: Ashok Hurra case – “superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.”) and therefore a judicial order cannot be challenged under Article 32. Hence, we were wondering why did you delve into the analysis of Article 13(3)/19(2)?

    • Primarily because Mirajkar (9J) is open-ended on the point, and seven out of nine judges appear to proceed on the premise that it is at least conceptually possible for a court order to violate 19(1)(a). But you’re right, should’ve referred to Hurra. Thanks!

  9. Shyam Narayan Chouksey vs Union Of India (Uoi) And Ors. on 24 July, 2003
    Equivalent citations: AIR 2003 MP 233 Bench: D Misra, A Shrivastava

    Did this matter reach the SC? What happened there?

    J. Dipak Misra’s views on the Constitution, and on rights, duties and freedom – from the MP High Court judgment.

    “We do not have to delve into that in detail but suffice it to say that Article 51A which was inserted in the Constitution by 44th Amendment (Act No. 1978) brought our Constitution in line with Article 29(1) of the Universal Declaration of the Human Rights. Article 29(1) of the Universal
    Declaration of Human Rights reads as under :
    “Everyone has duties to the community in which alone the free and full development of the personality is possible.”

    26. In this context it is worth noting that the founding fathers of the Constitution of India had encapsuled in a most vibrant manner in the Preamble of the Constitution the feelings, the needs, the desires and aspiration of a great country. 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 hot 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. Apart from the above many other behavioral pattern and duties are expected from the citizen. It is because the concept of duty is embedded in the highest tradition of the Indian culture, thought, literature, history and philosophy. True it is, the duties which have been incorporated in the Article 51A of the Constitution are not enforceable unless the Parliament or the State Legislature makes the law in regard for its enforceability but it can be indubitably stated the rights flow from duties when well performed. The great political philosopher Harold Laski long back had said that the rights are related to functions and are given only return for some duties to be
    performed. Rights are conferred on the individual persons not for their individual upliftment but also for social and collective good. In this context we may profitably quote what the Father of the Nation had said in this regard:
    “The true source of right is duty. If we all discharge our duties, rights will not be far to seek. If leaving duties unperformed we run after rights, they will escape us like will-o-the-wist, the more we pursue them, the farther they will fly.”
    “I learned from my illetrate but wise mother that all rights to be deserved and preserved come from my duty well done. Thus the very right to live accrues to us when we do the duty of citizenship of the world. From this one fundamental statement, perhaps it is easy enough to define duties of man and women and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be a usurpation hardly worth fighting for.”
    27. Keeping the aforesaid in view if we proceed to X-ray the bedrock of the provisions and the statement and objects and reasons of the 1971 Act it is clear as noon day that despite many a language, culture, religion and ethnic values we have one flag and one national anthem. 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. The dedication of our forefathers, the sincerity of the people who fought for the people and suffered death and sense of patriotism that was shown, cannot be thrown aboveboard on the ground of hypertechnicality when the interest of the nation is involved. When the pride of the nation is in issue and when nationalism has to play an essential part in the role of developing country, though the basic technicality has an entry but they cannot be allowed to govern or dominate primal or pivotal factors. Every citizen should remember that every word, deed and thought by him has to be indicative of the respect for the Constitution and the national anthem. No one is permitted to pave the path of deviancy and introduce the theory totalistic individualism in the name of freedom of expression. In that event freedom of expression in the name of art or liberty of creativity would amount to, to borrow the terminology of Dr. B.R. Ambedkar ‘Grammar of Anarchy.'”

    • Aayush

      I was not aware that ‘respecting the national flag” could pave way for such connotations as posited by J. Dipak Misra!

  10. Ashutosh Kumar

    Great post. In the context of judicial censorship, do you see any parallels to the Sahara order dealing with gag orders against the media?

    • Not entirely – Mirajkar also holds that in common law, courts have always had an inherent power to control reporting of proceedings. Of course, the Sahara judgment does not do a very good job of fleshing out the principles…

      • Ashutosh Kumar

        Fair point. Although my understanding is that the Sahara order extends beyond the reporting of court proceedings only – any adverse publicity which potentially affects fair trial comes within its ambit. Some decisions of the High Courts relying on the Sahara order also appear to suggest this. If my understanding is correct, then these orders (although not suo moto) amount to censorship by the courts without a basis in common law (such as the inherent power to regulate reporting of court proceedings), statute, etc. The only basis asserted in the Sahara order is the protection of the right to fair trial under Article 21. The present order relies on Article 51A in a somewhat analogous way. That is why I thought there could be parallels. Thanks! I always enjoy reading your views.

  11. Pingback: Supreme Court's National Anthem order: Is it law, asks legal expert in blog post - Firstpost

  12. Pingback: The Court Commands Subjects To Become Constitutional Patriots; Advent Of Judgocracy? | Live Law

  13. Pingback: | Does the Supreme Court ruling force-feed nationalism?

  14. Wondering

    I am not sure but doesn’t the order also go against what the SC spoke of in Bijoe Emmanuel with respect to violation of Article 19(1) (a)?

  15. Pingback: The Illegality of the Supreme Court’s National Anthem Order – Outposts of the Mind

  16. Sean

    Hi,
    I am an Indian citizen living overseas and have no background in the study of law whatsoever. I stumbled upon this blog through another website. I am deeply disturbed by how Indian society has been hijacked by jingoism and symbolic/false gestures of patriotism (this has been a gradual change and I am not blaming the current administration); “minor” inconvenience of standing in line for access to one’s money due to demonetization, for instance. Most nations in the world seem to be shifting to the far right, but that’s besides the point. This decision has definitely rankled me and I wonder what more encroachments of freedom are in store for Indian citizens! I was shocked to learn that only 2 SC judges presided on the case. In some of the examples you presented, there seem to be more judges passing decisions. In the US, there are usually 9 SC judges presiding on cases (although at this point 1 seat is vacant). Could someone please explain to me what the constitution or Indian Penal Code says about the minimum number of SC judges needed to make decisions. What would have happened if there was a tie? Doesn’t locking doors during the national anthem violate safety regulations? What if there was a fire or some kind of an attack or even a false alarm whereby people would run for the doors only to find them locked? Would these things have been considered before making the decision? Finally, please tell me that this decision is reversible and someone is working on challenging it. Apologies if I come across as naïve. I would really appreciate it if someone could explain using as few legal jargons as possible.

    Thanks,
    A concerned Indian citizen.

  17. JAYANTA KUMAR DAS

    NATIONAL ANTHEM AND SUGGESTION TO SUPREME COURT OF INDIA.

    01. During any Annual & Board Examination in schools there should be a COMPULSORY QUESTION to write the NATIONAL ANTHEM hence students would be eager to get full mark in this Sure Shot question by writing the National Anthem with correct spelling.

    02. MLAs & MPs should submit one AFFIDAVIT before their Oath Ceremony that they can SING the NATIONAL ANTHEM.

    03. During Final Interview of IAS, IPS etc the candidates should be examined by the Interview Board that he/she can sing NATIONAL ANTHEM & it should be part of the Final Interview.

    04. ANNUAL FUNCTION OF any school or colleges should begin with NATIONAL ANTHEM.

    05. All COURTS (including Supreme Court, High Courts & Lower Courts) must begin their daily work by SINGING THE NATIONAL ANTHEM.

    06. Any Meeting, Seminars, Function of any Public & Private Limited Companies should begin with NATIONAL ANTHEM.

    07. All Public & Private Limited Companies should be directed to make it COMPULSORY for all their employees that they can sing NATIONAL ANTHEM and they should give one undertaking.
    08. LOK SABHA, RAJYA SABHA & all STATE ASSEMBLY should begin the daily sessions with THE NATIONAL ANTHEM.

    09. If any citizen want to HOIST National Flag then he should submit one affidavit with the Local Administration that he can sing the NATIONAL ANTHEM.

    Being the Citizens of this Largest Democratic Country we are enjoying the Fundamental Rights & in Article 51(A), our Constitution has given some duty to us and the First Duty is:- (a) To abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem.

    Regards
    Jayanta Kumar Das, RTI Activist, 9861770749(M)

  18. Pingback: Weekly Roundup: November 29 – December 6, 2016 – Centre for Constitutional Law, Policy, and Governance

  19. Pingback: The Illegality Of Supreme Court’s National Anthem Order – Lib Talk India

  20. Well written piece Gautam. I agree that judiciary overstepped but i donot see the element of censorship. I have two points to make here:

    1. The court directed cinema halls to play National Anthem. So when we say violation of FR, i assume it is FR of the cinema owner and not the audience.

    2. The court has also directed people to stand while the N.A. is playing – Is this what violative of Part III rights of the audience? I dont know. But i believe its a positive obligation with no binding force and hence doesnot encroach upon any rights as such. To illustrate: A person may choose not to stand at her own sweet will. Nothing in the judgement tells us anything to the contrary. (also refer: Bijoe Emmanuel case)

    In short, my point is that it is not the substance but probably the procedure which lacks sanctity.

    But then nobody questioned the blatant procedural bypassing that Vishakha vs. State of RJ was. Most would agree that Vishakha was bona fide and a necessary dictat, but i submit that necessity itself doesnot make a case for bypassing the constitutional process.

    In my opinion, if at all anything is violative of Part III in this debate, it is The Prevention of Insults to National Honour Act, 1971.

    P.S. – The Act says “for allowing the Indian National Flag to touch the ground intentionally”, one could be imprisoned for 3 years!!

  21. Gautam,

    How are there media reports of people getting arrested for violating this? Lets say I live in a state in which cinemas did not play the anthem until this order was passed. Now after this order lets say it is violated in 2 cinemas. In one, the anthem was not played and in another one man did not stand. What will these folks be prosecuted for?

    Prevention of Insults to National Honour Act states that it is an offence to intentionally prevent the singing of the Indian National Anthem or
    causing disturbances to any assembly engaged in such singing …

    Neither of these things happened. So what crimes will the police charge arrested people with? Police cannot directly charge someone with Contempt of Court, right?

  22. Pingback: Outposts of the Mind

  23. Prahalad Bhat

    While I, of course, agree with the general sentiments of the post, I think the position on Article 13 should be clarified. Article 13(3) does not define “law” for the purposes of Part III. It defines ‘law’ for the purposes of the Article. I’m extracting the provision below for easy reference:

    “In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law;”

    Therefore, the issue of whether ‘law’ in Article 13 includes or does not include a judicial order is moot for the purposes of Article 19(2). In fact, there is a very good reason why ‘law’ for the purpose of 19(2) is narrower than for the purpose of Article 13. Article 13 defines law for the purpose of declaring it void if it conflicts with Part III rights. Therefore, the definition of law is the broadest possible law. (with the notable and deliberate omission of judge made “law”) Anything that has the force of law is “law” for its purpose.

    However, in the context of 19(2), law is used to describe an instrument of censorship. In this context, “law” means a legislation or subordinate legislation which is expressly permitted by legislation. It cannot include a purely executive act. This is made clear in the National Flag case (Naveen Jindal v. UoI) and ironically, the original National Anthem case (Bijoe Emmanuel v. State of Kerala). Therefore, any law made after 1950 which seeks to restrict Article 19 rights can only be with statutory approval.

    The reason why the judiciary cannot censor Article 19(1)(a) rights is even more straightforward. Article 19(2) provides that only the State can make laws that censor speech. (I’ll come to “existing law” in a bit) As Mirajkar, which you have referred to, holds, the judiciary is not State under Article 12 (which is defined for the purposes of Part III, in contradistinction to “law” in Article 12). Hence, it cannot censor speech.

    The position with regard to “existing law” is even more interesting. There are several prouncements of large early Benches of the SC on what this expression means. However, five judges of the Supreme Court have categorically states that “existing law” includes the common law. Hence, while a pre-1950 judgment could, technically, censor speech, a post-1950 decision cannot. (An interesting aside is that due to this historical anomaly in the law of civil defamation, a suit for defamation is technically not maintainable in the territory of a former Princely State!)

  24. I agree with you. Can someone push the govt for appeal? Or is there any party in the judgment who can do the appeal on this specific aspect of the order?

  25. Respecting National Anthem is very good practice. But playing this in cinema is totally base less because playing it is very easy step but it should be respected by the audience seating in cinema hall, other wise it is better not to play national anthem.

  26. Pingback: Judicial Censorship and Judicial Evasion: The Depressing Story of Jolly LLB 2 | Indian Constitutional Law and Philosophy

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