Social activist Shyam Narayan Chouksey’s (‘SNC’) life changed the day he went to see ‘Kabhi Khushi Kabhie Gham’ (2001, Director: Karan Johar). In one scene, a boy sings the National Anthem of India at a school function in London (‘scene’). He forgets the last five words. “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 its complete scenario, it is the script writer’s fertile imagination… A deliberate slip of the pen.” Can an actor repeatedly rehearse to forget a National Anthem? SNC raised a ‘sixty-four-million-dollar question’ before Madhya Pradesh High Court in Shyam Narayan Chouksey v. Union of India, AIR 2003 MP 233.

Hon’ble Justice Dipak Misra, then a High Court Judge, held for a Division Bench: ‘No’; the National Anthem was sung in K3G as a “song of advertisement for a commercial purpose’ and “it cannot be shown in a variety show or a cultural program of a school as an item.” It was directed thus, the film not be exhibited unless the scene is deleted. SC in Karan Johar v. Union of India, (2004) 5 SCC 127 set aside the Order of the High Court, on view of a changed circumstance, without venturing into merits. Even on a review application by SNC, decided in 2006, SC did not budge. It left the questions of law for being “raised and determined later in an appropriate case”.

The appropriate case has arrived. SNC, returned to SC on October 28th, this year, with Writ Petition (Civil) No. 855 of 2016, questioning what would constitute disrespect and abuse of the National Anthem. One half of the Division Bench that issued notice to Union of India, is Hon’ble Justice Dipak Misra, now a SC Judge, slated to be Chief Justice of India in August, 2017. It is ironical, the litigant and the Judge have now met twice on the same issue, divided by a time in which the Judge has traversed his journey from the High Court to the Highest Court of the Land. If an ‘article’, a ‘conference’ can be reasons for Recusals by Former SC Judges, a ‘previous Judgment awarded to the same litigant on the same issue’, may prompt an active interventionist to doubt the presence of Misra J on the Bench on grounds of ‘real likelihood of bias’.

At the second hearing on 30th November, SC nonetheless, issued a set of directions to be ‘scrupulously followed’, within 10 days. The directions bar ‘commercial exploitation’ or ‘dramatization’ of the National Anthem. The National Anthem must now play before the start of a feature film, during which all entry and exit doors of the cinema hall shall remain closed and all those in the hall shall stand up. It has been considered, to ‘show respect’ to the National Anthem, a symbol of ‘constitutional patriotism’, is an ‘ideal’ engrafted in the Constitution, a ‘fundamental duty’ [See, Article 51-A(a)] and is the ‘sacred obligation’ of every citizen.

Fundamental Duties were meant to have a sobering effect on the restless spirits who led a host of anti-­national and unconstitutional agitations. Fundamental Duties become enforceable only when they receive the sanction of the State in the form of a law made by the Parliament. There is no law that can enforce SC’s interim understanding of respecting the National Anthem, though SC may find some support in the obiter prescription of Bijoe Emmanuel, (1986) 3 SCC 615: “proper respect is shown to the National Anthem by standing up when it is sung”.

If the Attorney General’s recent commitments to Court are anything to go by, the National Anthem issue shall occasion a further collaborative attempt, between the Organs of the State, to formulate and declare the law.  Union of India is expected to circulate the November 30th Order to Chief Secretaries of all States and Union Territories. It shall also be “shown in the electronic media and published in the print media so that every one knows that such an Order has been passed and can follow the same in letter and spirit”. There was a time it was thought almost indecent to suggest, Judges make law or at least facilitate it. But we do not believe in fairy tales anymore. Today, it is no longer a matter of doubt, substantial volumes of law governing the lives of citizens and regulating the functions of the State flow from the decisions of Court [See, Raghubir Singh, (1989) 2 SCC 754].

It is not surprising, Delhi High Court has recently respected a prayer seeking framing of rules and protocols for the playing and singing of Vande Mataram. Will dramatization of the National Song in a feature film be considered commercially exploitative? Is proper respect shown to the National Song by standing up when it is sung? We await a February, 2017 hearing.

In Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (2006, Director: Larry Charles), Oscar-nominated screenwriter Sacha Baron Cohen as Borat, had parodied the Kazakhstan National Anthem. 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’s decision to sue this Jew.” Expect a lot of nervous playing of the National Anthem or Song in the coming days. It may not be the best idea to present it in a cultural program of a school. You may be produced as evidence before Court.