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Dipak Misra J shows little appetite for more controversy: SC declines BJP lawyer’s plea to make nat’l anthem mandatory in courts

To sing or not to sing? Well, don’t stretch things please, says Misra.

SC's Justice Dipak Misra done with anthem petitions for now...
SC's Justice Dipak Misra done with anthem petitions for now...

The Supreme Court today refused to entertain the petition of BJP leader and lawyer Ashwani Kumar Upadhyay, who seeking to get an order to make playing of the national anthem compulsory before court proceedings from the same bench that had on Wednesday passed a controversial order making the playing of the anthem in cinemas mandatory, reported PTI.

“Whether right or wrong, our order should not be overstretched. Bar (referring to Upadhyay) should show some restraint,” said the bench of justices Dipak Misra and Amitava Roy, according to PTI, with attorney general Mukul Rohatgi resisting the application on the basis that it was not made properly by the petitioner.

That is despite Upadhyaya having buttered up the bench’s widely-criticised Wednesday order, according to NDTV, saying: “It is a great order. The court can modify it to make it mandatory in all courts including the Supreme Court.”

Misra and Roy clearly had no appetite for any further controversy right now though: “We don’t need any adjectives. How can we allow you to intervene in this case?”

In Wednesday’s order, the Misra and Roy had invoked the “love of motherland” as authority for its order, saying that people should stop “wallowing” in freedoms and should instead embrace nationalism and patriotism.

The Supreme Court’s cinema anthem order has been widely slammed, with senior counsel Soli Sorabjee having gone on a powerful diatribe in an interview with the Indian Express calling it “per incuriam” and that it should be modified by the apex court, adding:

Is it the court’s function to go into such issues? People must stand up…is it the only criterion for showing respect to the national anthem? People may not be able to stand up for physical reasons, people may not stand up for intellectual or religious reasons because they may consciously believe that their religious beliefs, consciously held, prevent them from standing up. The other thing is that they (the bench) have not referred to the landmark judgment in Bijoe Emmanuel case. Bilkul refer hi nahin kiya. Also, how will this order be implemented? Who will count (how many people are standing and how many are sitting while the anthem is playing)? Who will see if one can’t stand up due to physical problems or some other reasons. And then, close the exit doors… what if there is an emergency? What if somebody urgently needs to go to the washroom?

This is going haywire. This (order) is not capable of effective implementation. That’s what I am trying to say. Judicial activism must not go haywire. They are referring to fundamental duties under Article 51A. There are so many fundamental duties, will they give directions to enforce them? i don’t think they are judicially enforceable. To preserve the rich culture of our country…see that. How will you implement that? I think judiciary has gone a little over-the-top.

Constitutional law scholar and freedom of speech expert Gautam Bhatia argued that the order was illegal and devoid of legal reasoning, on the Indian Constitutional Law and Philosophy Blog, and lawyer and policy analyst Bhairav Acharya has criticised the order and chronicled Misra's now long-running history with the national anthem.

Misra was also the judge who, to much criticism, had upheld criminal defamation in May of this year.

SC’s previous patriotic order

The bench had held on 30 November:

From the aforesaid, it is clear as crystal that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag. Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible [...]

Having heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is directed that the following directions shall be scrupulously followed:- [...]

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.

(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

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