Actor Shahrukh Khan has been in the news recently. His son Aryan Khan is accused of possessing contraband substances and was in jail for over a month. News channels are abuzz with this news and questions over Khan’s parenting and patriotism are constantly being raised, given his surname.

This gave me the idea to discuss the law governing a symbol of patriotism i.e., the National Anthem using a movie starring Shahrukh Khan i.e., Kabhi Khushi Kabhi Gham. This multi-starrer blockbuster (starring Amitabh Bachchan, Jaya Bachchan, Shahrukh Khan, Kajol, Hrithik Roshan, Kareena Kapoor etc.) is a family drama about a billionaire family, where the father Yashvardhan Raichand (played by Amitabh Bachchan) disapproves of his son Rahul’s marriage (played by Khan) with Anjali (played by Kajol), given the latter’s family background. As a result, Rahul leaves the house and moves to London. Rahul’s brother Rohan (played by Roshan) takes it upon himself to bring his brother and sister-in-law back to the house and as a result temporarily moves to London. He starts living with his brother Rahul under a different name, without revealing his true identity.

The movie has attained a cult status for its flamboyance and shooting locations. However, for our purposes it has an important scene which can teach us the law governing the singing of India’s national anthem. Before discussing the movie scene, a brief discussion over our National Anthem’s history would be helpful.

A. History of India’s National Anthem

The Hon’ble Supreme Court of India in Sanjeev Bhatnagar v. Union of India, (2005) 5 SCC 330, very aptly discussed the history of India’s national anthem. The National Anthem is composed by Nobel laureate Rabindra Nath Tagore and was first sung at the annual session of Indian National Congress in Kolkata in the year 1911. The song was adopted by our Constituent Assembly on 24 January 1950, when its President Dr. Rajendra Prasad declared it as the National Anthem.

The anthem reads,

Jana-gana-mana-adhinayaka, jaya he

Bharata-bhagya-vidhata
Panjaba-Sindha-Gujrata-Maharata-
Dravida-Utkala-Vanga
Vindhya-Himachala-Yamuna-Ganga
Uchhala-Jaladhi-taranga
Tava shubha name jage

Tava shubha ashisha mage
Gave tava jaya-gatha
Jana-gana-mangala-dayaka jaya he
Bharata-bhagya-vidhata.
Jaya he! Jaya he! Jaya he!
Jaya jaya jaya, jaya he!

(Translation:

Thou art the ruler of the minds of all people, Thou Dispenser of India’s destiny.
Thy name rouses the hearts of Punjab, Sind, Gujrat and Maratha, Of Dravid, Orissa and Bengal.
It echoes in the hills of the Vindhyas and Himalayas, Mingles in the music of Jamna and Ganges and is chanted by the waves of the Indian sea.
They pray for Thy blessings and sing thy praise.
The saving of all people waits in thy hand, Thou Dispenser of India’s destiny,
Victory, Victory, Victory to Thee.)

I would like to take this moment to dispel a rumour about the National Anthem i.e., it was written in praise of King George V. The Central Information Commission in Harinder Singh Dhingra v. PIO, 2016 SCC Online CIC 15729 clarified that this rumour emerged because the anthem was composed near date of the Coronation Durbar of King George V. As a result, it was assumed by many that it was written for him. However, the song was first sung before the Indian National Congress and only then sung before the Durbar on its second day. The British press misreported the incident to write, ‘the Bengali Poet Rabindranath Tagore sang a song composed by him specially to welcome the Emperor’ (Statesman, Englishman, Indian). According to historians, this confusion arose since a different song titled ‘Badshah Humara (Our King)’ written in praise of the monarch was also performed on the same occasion. This is made clear if one reads the day’s reporting by the Indian Press i.e., “The proceedings of the Congress party session started with a prayer in Bengali to praise God (song of benediction). This was followed by a resolution expressing loyalty to King George V. Then another song was sung welcoming King George V.” (Amrita Bazar Patrika, Dec. 28, 1911)

B. Law governing the National Anthem

The text of the original Constitution (as adopted in 1950) had no substantive provision concerning the National Anthem. Interestingly, Article 51-A was added through the infamous 42nd Constitutional Amendment which stipulated a fundamental duty on every citizen to respect the National Anthem. This article is non-binding and a violation of it per se does not attract prosecution.

In the year 1971, the parliament passed the Prevention of Insults to National Honour Act, 1971 (‘the Act’) which made it an offence to intentionally prevent the singing of the Anthem or causing disturbance to any assembly engaged in the singing of the Anthem (Section 3). The offence carries an imprisonment of three years or fine, or both.It should be noted that as per the provision, one can commit the offence of insulting the national anthem only by doing the two above mentioned acts.

For instance, in N.R. Narayan Murthy v. NH Nanjegowda, (2008) SCC Online Kar. 61, the petitioner was accused of violating Section 3 of the Act, since he gave instructions to play an instrumental version of the Anthem and not the original version, at an event. The Court held that Section 3 was not attracted as the petitioner did not prevent persons from singing the anthem nor did he cause any disturbance to an assembly singing it.

C. The Movie

Coming back to the movie. In a sub-plot, Anjali (Rahul’s wife played by Kajol) is worried about her son Krish growing up in England and not learning about his own culture and country. Krish is supposed to perform the song ‘Do-Re-Mi’ at his school annual function, an event attended by the entire family. However, to everyone’s surprise Krish sings the Indian National Anthem (Jana Gana Mana) instead, as a gift to his mother. The entire audience is shocked and gets up to pay their respect to the Anthem. In a heart touching scene, a disabled girl on a wheelchair, raises her hand to indicate her respect for the anthem as well.

While this scene is important as it acts as a big reveal where Rahul finds out the true identity of his brother, it is also important as it probably intended to instil feelings of pride and patriotism in the hearts of all Indians watching it. While that may have been the intention, some Indians felt otherwise and approached the Courts to stop the screening of the movie till this particular scene was deleted. They argued that while the Anthem was played in the movie not everyone in the theatre stood up in respect and hence the producers (along with the director and actors) were liable under the Act.

Before the Allahabad High Court, it was prayed that the said scene violated Section 3 of the Act, as (a)  the national anthem was played longer than the prescribed time (being 52 seconds); and (b) the producer gave no prior notice/caution to the public about its existence, and hence not everyone stood up, thereby disrespecting the anthem (Yash Johar v. State of UP, 2009 SCC Online All 1046). The petition read, ‘so in these circumstances the film mentioned above gives wrong message to the society. When this film is exhibited in foreign countries, there it will become ‘joke’ for them, that how the Indians are insulting their own National Anthem.’

A similar petition was filed before the Madhya Pradesh High Court and the Court went ahead and stayed the screening of the movie, till the scene was deleted. The Court was particularly harsh (in my opinion unnecessarily so) on the producers and observed, “National Anthem is to be sung with magna cum laude and nobody can ostracize the concept of summa cum laude. In the case at hand, as we have noted earlier the son of the protagonists sings the National Anthem as a surprise item. The presentation, according to us, is in medias res. The child actor forgets the line and utters the term “sorry”. To some it may appear lapsus linguae, slip of the tongue or a natural forgetting but if the whole thing is perceived, understood and appreciated in complete scenario, it is the script writer’s fertile imagination and the Director’s id est.It is deliberate. A deliberate slip of the pen. It is because there is in a way, deliberation to project a dramatic effort to show that the scene depicted in the film is on an absolute terra firma. The writer and director have totally forgotten that they were portraying the National Anthem of a great country.( Shyam Narayan Chouskey, 2003 SCC Online MP 400). Fortunately, the effect of the judgment was stayed by the Hon’ble Supreme Court and the producers could continue screening the movie.

This entire series of cases raise two interesting questions i.e., is one mandated in law to (a) sing the national anthem when played? and (b) stand up when the national anthem is being played? The answer in law is no but in prudence is yes.

First (a), the Hon’ble Supreme Court in Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615 observed that there is no law which obliges anyone to sing the national anthem, when played. The Court further held that so long as a person stands up respectfully when the anthem is sung, no disrespect to the anthem is caused.

Second (b), there is nothing in law despite the above-mentioned court observation that mandates standing up when the anthem is played. The Constitution and the Act only prescribe that the anthem must be respected, but they are silent on what constitutes the proper way to show respect. In the year 2016, the Supreme Court went one step further and passed an order mandating all cinema halls to play the national anthem before the movie starts, to ‘instil a sense of committed patriotism and nationalism’. The order also mandated every person present in the hall to stand up while the anthem was played. Interestingly, this order was passed by Justice Dipak Mishra, the same Judge who authored the Madhya Pradesh judgment staying the screening of Kabhi Khushi Kabhi Gham.

Supreme Court’s order created havoc. According to news reports, several arrests were made when movie goers refused to stand up and in one unfortunate incident a disabled man was assaulted for not standing up when the anthem was played. Thankfully, the said order was withdrawn subsequently and playing of the anthem was made non-binding. However, in practice almost all theatres continue playing the anthem fearing backlash from sensitive fringe groups.

A few years ago, the Ministry of Home Affairs issued an order regulating the usage of National Anthem. The order mandates the audience to stand to attention when the anthem is played before the screening of a movie. However, this is not applicable if the anthem is played during the course of the movie/documentary or a newsreel.

This clarification settles the controversy against the movie Kabhi Khushi Kabhi Gham, as the audience was not mandated to stand up during the particular scene when the anthem is being played.

Concluding Remarks

I have previously written against the practice of hollow patriotism wherein citizens file complaints as a matter of course without understanding the actual law, solely because they are extra-sensitive. Feelings of patriotism are extremely important to keep the country together, however the more one forces it, the more detesting it becomes. Everyone has her/his own way of showing respect to national symbols which should be allowed, so long as it is not outrightly defiant and obnoxious.

Unfortunately, what constitutes ‘respect’ often falls on the shoulder of the judiciary. If history is any indication, the judiciary does not always do a good job defining it. I shall leave you with a quote from the above-mentioned Madhya Pradesh High Court judgment. Sadly, the over-usage of legalese in the said paragraph is more exasperating than views on forced patriotism.

They have not kept in mind ‘vox populi, vox dei’. The producer and the director have allowed the National Anthem of Bharat, the alpha and omega of the country to the backseat. On a first flush it may look like a magnum opus of patriotism but on a deeper probe and greater scrutiny it is a simulacrum having the semblance but sans real substance. There cannot be like Caesar’s thrasonical brags of “veni, vidi, vici.” The boy cannot be allowed to make his innocence a parents rodomontrade, at the cost of national honour.  In our view it is contrary to national ethos and an anthema to the sanguinity of the national feeling. It is an exposition of ad libitum.”

Jai Hind and also, Happy Birthday SRK!

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