Thread by @gautambhatia88

Today, the SC heard arguments on the mandatory playing of the national anthem in cinemas. An account of the oral arguments follows. <thread>

This account is deferred by around five hours, but I'll treat it as if it was live.

Preliminary disclosure: I was one of the lawyers representing the Kodungallur Film Society, which was asking the SC to recall its order.

Bench assembles. Mr C.U. Singh, Senior Advocate for the Kodungallur Film Society, commences his submissions.

Mr. C.U. Singh says that he is asking the SC to recall its earlier order making the national anthem compulsory in cinemas before each film.

Mr. C.U. Singh says that nobody is objecting to the national anthem. The question is whether the Court can issue such directions in a PIL.

The Chief Justice asks the Attorney-General, Mr. K.K. Venugopal, for his view on the recall application.

The AG says that he opposes the recall application, and that he is in full support of the SC's original order of December 2016.

(Note: This is a continuation of the stand of the last AG, Mr. Mukul Rohatgi, who had also supported the SC order.)

AG: What is relevant here is Article 51A of the Constitution, which is a fundamental duty. (See here: indiankanoon.org/doc/867010/)

AG: Article 51A(a) mandates respect for the national anthem. Nobody can possibly object to this order.

AG: This SC order is meant to unify the nation, against selfish claims of caste, creed, religion etc.

AG: This is in aid of national integration.

Mr. C.U. Singh responds. He begins by giving a brief background of the Film Society, and its long tradition of hosting public screenings.

Mr. C.U. Singh: People come from nearby villages to discuss and critique films, both national and international. There is a culture.

Mr. C.U. Singh: We're not opposed to the anthem. We're not opposed to standing when it's played on solemn occasions, e.g., national events.

Mr. C.U. Singh: There already exists a statutory regime which sets out how and in what circumstances the national anthem is to be respected.

(Note: This is the Prevention of Insults to National Honour Act - mha.nic.in/sites/upload_f… and gov't circulars: mha.nic.in/national)

Mr. C.U. Singh: Our objection is that in this case there was no existing dispute, no pending case, no lis.

Mr. C.U. Singh: A Petitioner cannot simply come to Court with a wish-list, a bunch of prayers, and ask the Court to act upon it.

Mr. C.U. Singh: He cannot simply ask the Court to issue directions that the national anthem be played in all cinemas.

Mr. C.U. Singh: The correct authority to do this is the Parliament, not the Courts. Let the learned AG consult his government.

Mr. C.U. Singh: In effect, he is asking for legislation by judiciary.
Chief Justice: So your case is that we should not grant prayers D to F

(Note: Prayers D to F are the prayers asking the Court to make the playing of the national anthem mandatory)

Mr. Rakesh Dwivedi, Senior Counsel for the Petitioner (who asked for these prayers) intervenes. He invokes Article 51A of the Constitution.

Mr. Dwivedi: Article 51A, the fundamental duty to respect the national anthem, must be read with Article 21, the right to life.

Mr. Dwivedi: In fact, the Court must read them expansively, as it did in the privacy judgment. There is a positive obligation on the gov't.

Mr. Dwivedi: I.e., people have a right that the State ensure that the national anthem is respected everywhere. The State must make a law.

Mr. C.U. Singh: These are excellent sentiments no doubt, but our point is that the Court is not the correct forum for this.

Khanwilker J. to C.U. Singh: In some States like Maharashtra, hasn't the government done this through a circular?

Mr. C.U. Singh: Yes, but in other States, like Kerala, there's no such rule.

Khanwilker J.: So what's your objection if the Maharashtra rule is extended to other states? Isn't that a good thing?

Mr. Rakesh Dwivedi reads out the provisions of the Prevention of Insults to National Honour Act.

Mr. Dwivedi: In this Act, there is a detailed scheme for how the national flag is to be respected. It is in section 2.

Mr. Dwivedi: "Disrespect" to the national flag has been defined extensively, in clauses from (a) to (l).

Mr. Dwivedi: However, by comparison, Section 3 of the Act, which deals with the national anthem, is very sketchy.

Mr. Dwivedi: Section 3 only prohibits interfering with the singing of the national anthem. This is not enough.

Mr. Dwivedi: There is a deficit in S. 3. It's width is not matching what is desired. Parliament has to come in. The Court must direct it.

(At this point, there is some disruption, as one of the parties insists that the national song - Vande Mataram - is as important)

The Chief Justice makes it clear that the Court will not be hearing any submissions on the national song. After some time, order is restored

The Chief Justice suggests changing the interim order from "shall play [the anthem]" to "may play [the anthem]."

AG: But this would make it entirely discretionary for the cinema theatre owners to decide whether or not to play it.

Mr. C.U. Singh: As it should be. They are private theatre owners.

Justice Chandrachud reads the various orders of the government on how and where the national anthem is to be played.

Chandrachud J. (to the AG): Mr. AG, if you're so keen, why doesn't your government do this, like it has done in the past?

Chandrachud J.: If we give this direction today, where will we stop? Tomorrow someone will say, "nobody can wear shorts in the cinema +

+ because the national anthem is going to be played. Why are you placing the burden upon us?"

AG: There is no need for a government order. The existing orders make it clear that they are not exhaustive. So the Court can step in.

Chandrachud J.: Why must we wear our patriotism on our sleeve?

The AG invokes Article 51A again.
Chandrachud J: Can the Court enforce every part of Article 51A? That's very dangerous.

Chandrachud J.: Article 51A is very wide. For example, there is a provision on valuing our rich heritage and composite culture.

Chandrachud J.: Will there be PILs tomorrow on enforcing this? How will that happen?
Mr. C.U. Singh: Indeed, it will open the floodgates.

AG: However, Article 51A is surely not just a sanctimonious declaration without any force.

Chandrachud J. repeats the shorts-in-the-cinema example, and asks "where do we draw the line at such moral policing?"

Chandrachud J.: "People go to cinema hall for undiluted entertainment."

The AG takes an example of his childhood during World War II, where the British would play a "propaganda reel" before each film.

AG: They would also play the British national anthem, and we would stand. The idea was to inculcate unity.

Chandrachud J.: But the question here is whether there should be court-mandated patriotism?

Chandrachud J.: "You don't have to sing the anthem in a movie hall to demonstrate your patriotism."

Chandrachud J. asks again why the Court is the correct forum for this.

AG: "With the greatest of respect, there have been many occasions where the Court has acted in place of the government. All of PIL."

Chandrachud J: Public interest litigation is under Article 21 - not under Article 51A.
Mr. C.U. Singh: Article 51A is not enforceable.

Chandrachud J.: Yes, there's a reason why Article 51A is neither in Part III (fundamental rights) nor Part IV (Directive Principles).

AG: But it is a guidance to the Court.
Siddharth Luthra Sr. Adv. (amicus curiae) takes the example of environmental litigation.

Chandrachud J.: The point is that values are inculcated - they are not mandated.

AG: The national anthem is something that unifies a diverse nation. It is something that you must place above your individual interests.

Rakesh Dwivedi, senior counsel for the Petitioner, repeats his argument about reading Articles 51A and 21 together.

Mr. Dwivedi: All of us citizens have a right under Article 21 that the government prescribe respect for the national anthem.

Mr. Dwivedi: this Court may direct all the states to make a policy in this regard.

Mr. VIkas Singh (senior counsel for the Bar Association): It should be made mandatory in schools. That's the place to start.

Mr. Vikas Singh: In Missionary schools, they sing their own thing.

Chandrachud J. objects strongly. "I went to a missionary school. We sang both the national anthem and the Lord's Prayer."

Chandrachud J.: "Both have been equally important for my life."

Mr. Rakesh Dwivedi: Section 3 of the Prevention of Insults to National Honour Act should be made punitive, Right now there is no punishment.

Mr. C.U. Singh: But there's no challenge to the Act.
Mr. Dwivedi: We amended our petition and we have now challenged it.

The Chief Justice once again suggests replacing "shall" with "may" in the order, and making it discretionary. This time the AG agrees.

There is immediate chaos at this. Mr. Biju, one of the lawyers in the case, strongly objects and stresses the need for patriotism.

Mr. Dwivedi objects. He says it will send a very wrong message.
Mr. Biju: This will reduce the order to a mere suggestion.

Mr. Siddharth Luthra, the amicus, also objects to this, saying it will make the order redundant.

Chief Justice: What we will do is, we will give the Union Government some time. They can decide if they want to bring in a rule.

The Chief Justice dictates the order. He does not replace "shall" with "may".

Consequently, the effect is that the playing of the national anthem remains mandatory in cinema halls. In the meantime, the government is +

+ directed to consider the matter, and take a call on whether or not to regulate the issue.

You may read the Court's final order here: supremecourtofindia.nic.in/supremecourt/2…

Repeat disclaimer: I work in the chambers of Mr. C.U. Singh, and we appeared in this case. Filter tweets for bias. Finis.

The next date is January 9, 2018 - by which time, the government would have either taken some steps, or decided not to. So we'll see.

Cheers all.