“It is quite demonstrable and patently clear that the National Anthem was used in a variety show of a school. It was presented as an item on behalf of Class IV students. It is also noticed that when the boy started singing the National Anthem the audience do not stand up immediately. The movement is quite slow. The audience in the film is taken by surprise. They are nonplussed. Some of the audience stand after three lines, some of the audience after four lines and some after five lines. The National Anthem has not been sung in an uninterrupted manner. The boy says ‘sorry’ and mother fills up the words.”

My Lord, Was the National Anthem of India used to gain a commercial advantage?

Yes.

“The Censor Board of Film Certification was not careful or circumspect before permitting the public screening of the film.

The boy says ‘sorry’ in the midst of the Anthem and mother after some time completes the same. All this has been done to create a dramatic impact in the picture for the benefit of the producer. This should not be allowed to be done for the popularization of the National Anthem as has been understood in this great country. That apart in our considered view the National Anthem cannot be shown in a variety show or a cultural programme of a school as an item.

In our considered view, the National Anthem has been sung in the movie as if it is a song of advertisement for a commercial purpose. It is absolutely discernible. The film ‘Kabhi Khushi Kabhi Gham’ shall not be shown in any theatre unless the scene which depicts the National Anthem is deleted; Karan Johar and Yash Johar shall immediately withdraw the film from all cinema-halls and the theatre owners are restrained from showing the film in the present form; The Central Board of Film Certification shall withdraw the certificate unless the deletion is effected and the deleted feature film is shown to the members of the Board as required under the Act and the Rules.”

– Hon’ble Justice Dipak Misra, Shyam Narayan Chouksey v. Union Of India, AIR 2003 MP 233 decided on 24.07.2003.

In an appeal by Karan Johar, the SC in Karan Johar v. Union of India, (2004) 5 SCC 127 set aside the order of the Madhya Pradesh High Court. The Bench did not venture into a commentary on the commerce of K3G. A further important question went unaddressed:

Can an Actor repeatedly rehearse to forget a National Anthem? Future Chief Justice of India, Misra J. had thought of this in 2003.

In the movie ‘Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan,” Sacha Baron Cohen as Borat, had parodied the Kazakhstan National Anthem.

“Kazakhstan is the greatest country in the world.

All other countries are run by girls.

Kazakhstan is an exporter of potassium.

Other countries have inferior potassium.”

The Kazakhstan Government had threatened to sue Cohen. Then, Cohen (in his Borat avatar) was quoted as saying, “I’d like to state that I have no connection with Mr. Cohen and fully support my government decision to sue this Jew.”

Closer home no such controversy brewed for Child Actor, Jibraan Khan. He is no longer a Class IV student; is in his twenties; and often tweets with a philosophical bent. Up until now, K3G remains his high point as an Actor.

Recently, in January 2016, Karan Johar received a further reprieve from a District Court in Uttar Pradesh. One, Pradeep Chandra had moved the Court of a Judicial Magistrate in 2002 under The Prevention of Insult to the National Honour Act, 1971, alleging that the portrayal of  the National Anthem in K3G, released on 14th December, 2001 was not desirous.

The incisive question, as formulated by Misra J., however, remains wide open for consideration. Surely enough, one day, it will raise it ugly head.

31.10.2016

It is reported that Shyam Narayan Chouksey has filed a petition before the SC seeking, amongst other things, a bar on the commercial exploitation of the National Anthem for financial or any other gains. Misra J., now at the Supreme Court in 2016, has issued notice. 

01.11.2016

30.11.2016

The Supreme Court of India has issued multiple ‘interim measures” in the PIL filed by Shyam Narayan Chouksey.

The Court noted that the National Anthem was being sung in circumstances which were “impermissible”, and a clear violation of the Prevention of Insults to National Honour Act of 1971. Calling it the duty of every Indian to show due respect to the anthem, the Bench noted that it was a “symbol of constitutional patriotism”.

It then proceeded to direct the following interim measures:

• The National Anthem cannot be commercially exploited to gain financial advantage or benefit.
• It cannot be introduced or used as part of any entertainment program or variety show.
• The anthem is not to be printed on any undesirable object, or be used in places where it’s dignity is compromised.
• All movies and cinema halls are to play the National Anthem before the showing of feature films. All present are required to award due respect to the anthem.

The Union was directed to circulate a copy of the order to the Chief Secretaries of the States and Union Territories, and to publish it in print and electronic media. It was also directed that the order be given effect within a week, and the matter is now listed for February 14, 2017.

To be continued…