Quis custodiet ipsos custodes, is a very often heard line whose validity must not be lost as passé. For, the relevance of the cited maxim comes often into play. Recently Hon'ble Supreme Court in Shyam Narayan Chouksey v. UOI[ii] held that the National Anthem must be played in cinema halls before screening of the movies, and any disrespect to it, is Anti-National activity. And that during the time National Anthem is played the entry and exit doors is to be closed!

The court also directed that no commercial exploitation of the national anthem should be done. The court in its order observed that no dramatization of national anthem is warranted and also it should not be included in any variety show. To think of dramatized exhibition of the national anthem is, the court said, inconceivable. The court believes that in scrupulously following the said directives, it would show love and respect for Motherland, and also it will instill nationalistic and patriotic feeling in the people.

Banning National Anthem in movies
The petition was filed as 'citizen standing'[iii] in which it was averred that necessary respect must be shown to the national anthem. Hon'ble Mr. Justice Dipak Mishra, who heard the present petitioner, was also the judge in previous case instituted before the Hon'ble High Court of Madhya Pradesh by the same petitioner in matter relating to movie 'KABHI KHUSI KABHI GUM'.[iv]

Although in the order Mr. Justice does not rely on that case nevertheless the petitioner had better chances as in the aforementioned case also the judge was against commercialization of the national anthem. But what is interesting is that in the order the court did not feel necessary to give legal reasoning, apart from relying on 'Fundamental Duties' which is not enforceable, but also directed an interim measure which is to be 'Scrupulously followed'.

Some observations of the learned judges is too wide. For instance the court says-
'The National Anthem should not be used by a person involved in any commercial benefit or any other benefit.'

Should the playing of national anthem in commercial movies necessarily mean that the national anthem is being disrespected? Does not the movies introduce a patriotic feeling among the people? To illustrate, the last part of movie 'Dangal', wherein the national anthem tune is played in background after a protagonist wins a medal, does it not show a sense of pride?

To some audience, the movies may inculcate, educate and pump more nationalistic feeling, thereby securing proper respect towards the national anthem, more than merely singing or standing to the tune without any sense of duty. Moreover the fundamental duties shower the Citizens with said obligations, but it is not for the foreigners. But the movies can help educate the foreigners about the national anthem to which they are ignorant, and thereby acts as an instruction as to the responsibility of every person to respect the symbolic identity of a nation that they visit to.

Movies act as catalyst against corruptions, nepotism, rowdies etc. It is a source of entertainment and a place for fantasies. Moreover it was held in Karan Johar case [v] that when a national anthem is played in middle of the film, one need not stand up, else the same causes confusion among people. It is therefore submitted that in-toto banning of the national anthem in any commercial movies, which is not in any manner derogatory or disrespectful is not warranted.

Enthusiastic Legislative Court

The court does have power to make laws under Art. 142 for doing complete justice to a cause pending before it. And the manpower to enforce it, is provided by Art. 144 which directs all authorities, civil and judicial, to act in aid of SC.

But this power of making laws is a very limited power. Ordinarily the rule is that the court should not resort to making laws, but rely on statutory provision, despite this fact the court decided to pass an interim order.
The government was only too happy to escape the criticism of having extra adrenaline of jingoistic patriotism which often they are charged of, and this was evident from the fact that the attorney general readily agreed to such order and made no resort to convey the message that law making was within the domain of the legislative bodies. Moreover the court knew its order in form of enacting a law, would be vague, as stated before, as it is not through proper channel, without proper discourse or debate and on the whim of what a limited numbers of judge conceives to be the standard expected of people.

On the other hand the legislature has to go through lengthy process of bills, arguments, passage of bills, then passing to another house where again the debate, discussion, amendments etc. are made and even thereafter the law has to get the sanction of the president. Therefore a lot of discourse takes place before a law is enacted. Therefore a capricious law can be curtailed by the members of house coming from diverse sections of the society.

The court which jealously holds its Jurisdictional ground from the encroachment of Executive and Legislature, shown such as by NJAC case, should not have directed the interim order which was nothing of immediate urgency and especially when the court knows it's not within their domain to make laws. Moreover it was also within the 'judicial notice'[vi] of the court that such a law had been passed, wherein the national anthem was played after the end of the movie, but since people would just leave at the end of the movie, the rule was abandoned.

The existing laws do not penalize or force any person to stand up. But it does state that a person ought to show respect and not bring it into contempt whether by words or act.'Prevention of insults to National Honour Act, 1971'provides as follows;
'Prevention of singing of Indian National Anthem, etc.—Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance 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.'[vii]

The respect for the national anthem, as interpreted by Bijoe Emmanuel case [viii], held that it could be shown by standing erect in respectful manner, even without singing. Thus the court whilst accepting that singing was not cardinal rule of showing respect it declined to give unqualified rights to the members of Jehovah's Witnesses against the National Anthem which would otherwise endanger the security of the Nation. The court stated that an unqualified discretion would will develop, among the citizens a tendency to ignore the mandates of the Constitution.

Now with the order being passed by Hon'ble Supreme Court, a rule has thus been laid down. Nevertheless, it is not clear as to the penalties for the violation of the same. The overenthusiastic court could but not lay any proper law, for it has got no legislative mechanism of its own. If any, presumably with the help of amicus curie, the benefit was not taken. Therefore a law without any proper mechanism has been passed. There is no answer in that 'Order' as to what would happen to wheelchair bound person? [ix] Would he too get beaten up by a vigilante who is not so sanctioned for doing public duty? What is punishment for that unauthorized vigilante? And such other questions as to non-closing of the exit and entry doors[x] etc. though it might seem trifle, but remains unanswered.

The blindfold on the eyes of the 'lady justice' denotes that whosoever comes before her, is equal before the eyes of law, though they might be of unequal status in life. It also signifies that the judge is blind to his personal feelings or outlook towards any particular thing. It is important to note that, what he might think or feel is right, might just turn out to be wrong for the others. Hence the judge should shy away from legislating a law unless it is called to do complete justice, where otherwise the result would be miscarriage of justice. Therefore it is submitted that legislation should have been best left to legislative body to legislate with proper perusal rather than to usurp the jurisdiction.

Fundamental Duties

Before this decision of the court there was no binding rule of playing of the national anthem before the beginning of the movie. Now the order of the court relies exclusively on Fundamental Duties and compels a person to stand.

One has to remember that the Fundamental Duties were made non-enforceable, because they are supposed to be moral duties and ordinarily the moral duties are not enforceable unless backed by a law. Fundamental Duties are more like a reminder of the rich heritage, culture, traditions and values of freedom struggle. Legislature leaves it to the good sense of judgement of the people to not to indulge in indiscriminate acts against such duties and did not resort to any sanction as such.

Other reasons for making it non enforceable could be possibly due to majority of Indians being uneducated even in late 1970s, when the Art. 51A was enshrined to Constitution by 42ndamendment, and more so because, a sense of respect for national identity must not come from the compulsion, but from a sense of duty from within a persons' feelings. Compelling a person to stand does not implant a patriotic feeling in a person.

Way Forward
Anthem being made compulsory to be played in movie theatre is one thing and the duty of every citizens to respect it is quite another. Even without the 'Judicial Order', the respect for the national identities such National Flag, National Anthem, Constitution should remain intact. No one should show contempt nor place any indiscriminate disregard for the same.

The court also has a share of duty that it should not encroach upon others domain, notwithstanding the fact that the executive or for that matter the legislature was not averse to its legislating on such particular subject. It gets necessary to repeat so, because what is done once may be repeated again. This lays ground for discord between the three bodies of the State.

References
[i] Who will watch the watchman?
[ii] Writ petition (civil) No. 855/2016.
[iii] A concept of PIL, where the petitioner litigates in the interest of the whole citizens rather than merely for some limited victims.
[iv] AIR 2003 MP 233
[v] AIR 2003 MP 233
[vi] Sec. 15 Indian Evidence Act 1872.
[vii] Sec. 3
[viii] AIR 1986 Ker 32
[ix] An 'Executive Order' was passed on later date which required that the wheelchair bound persons need not stand up.
[x] Order is contrary to 'Uphar Fire Tragedy' case where it was held that the exits doors can't be closed.