Case BriefsSupreme Court

Supreme Court: In the application seeking recall of the order dated 30.11.2016 where the bench of Dipak Misra and Amitava Roy, JJ held that all cinema halls to play National Anthem, with the National Flag on the screen, before the film starts, the 3-judge bench Dipak Misra, CJ and AM Khanwilkar and Dr DY Chandrachud, JJ said:

“the Central Government should take a call in this regard and, if necessary, as advised, may bring out the requisite notification or circular or rules.”

The Court, however, clarified that the discretion rests with the Central Government and it is to be exercised without being influenced by the interim order. The bench placed the matter for next hearing on 09.01.2018.

Attorney General KK Venugopal, arguing in favour of making it compulsory to stand in the Cinema Halls when the National Anthem is played before the movie, said:

“because of the vast diversity in the country based on religion, race, caste and even region, it becomes necessary to have uniformity which should be cultivated by playing the National Anthem so that when people come out from the cinema halls, instilling the belief that they are all Indians.”

On 30.11.2016, the bench of Dipak Misra and Amitava Roy, JJ said 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. [Shyam Narayan Chouksey v. Union of India,  2017 SCC OnLine SC 1244, order dated 23.10.2017]

Know thy Judge

Ministry of Law and Justice has finally put rest to the speculation over the appointment of the next Chief Justice of India and has notified that Justice Dipak Misra will be the 45th Chief Justice of India after the incumbent Chief Justice, Justice JS Khehar, who is set to retire on August 28, 2017, had recommended Justice Misra’s name as his successor. Justice Misra, who was born on October 03, 1953, will serve as the Chief Justice of India till October 02, 2018.

Justice Misra has been serving as a Supreme Court Judge since October 2011. He began his career as an Advocate in 1977 and practiced in Constitutional, Civil, Criminal, Revenue, Service and Sales Tax matters in the Orissa High Court and the Service Tribunal. In 1996, he was appointed as an Additional Judge of the Orissa High Court and was later transferred to the Madhya Pradesh High Court in 1997 and became a permanent Judge in December 1997. Justice Misra has also served as the Chief Justice of the Patna and Delhi High Courts before being elevated to the Supreme Court.

While we wait for Justice Misra to take oath on August 28, let’s take a look at some of his notable Supreme Court judgments:

  • Nirbhaya Verdict[1]: The Nirbhaya case needs no introduction. The world waited for almost 5 years to know the fate of the men responsible for the heinous crime of gang rape and torture committed in a moving bus in Delhi on the night of December 16, 2012 which led to the death of a 23-year-old girl. As an aftermath, the whole world came together to demand justice for the girl and the prime accused committed suicide in his jail cell. Justice Misra headed the 3-judge bench that sent the 4 offenders to the gallows. In the 429-page long judgment, Justice Misra wrote that ghastly manner in which the offence was committed “sounded like a story from a different world where humanity has been treated with irreverence.”
  • Yakub Memon Hanging[2]: Justice Misra headed the 3-judge bench that held that there was no procedural flaw in the curative petition decided by the Supreme Court and the issuance of the death warrant by the TADA Court, thereby, ensuring the hanging of the 1993 Bombay Bomb Blast convict. Considering the urgency of the matter, the bench conducted an unprecedented midnight hearing and Yakub Memon was executed on the following morning. After Yakub Memon’s execution on July 30, 2015, it was reported that Justice Misra had received death threat via a letter that said that he will not be spared.[3]
  • National Anthem Case[4] : The 2-judge bench headed by Justice Misra made it mandatory for all cinema halls to play National Anthem, with the National Flag on the screen, before the film starts.
  • Nitish Katara Verdict[5]: Sentencing Vikas and Vishal Yadav to 25 years imprisonment for brutally murdering Nitish Katara who was in love with their sister, Justice Misra used strong words to condemn ‘honour killing’ and said that “neither the family members nor the members of the collective have any right to assault the boy chosen by the girl. Her individual choice is her self-respect and creating dent in it is destroying her honour. And to impose so called brotherly or fatherly honor or class honor by eliminating her choice is a crime of extreme brutality.”
  • Constitutionality of Criminal Defamation[6]: Justice Misra headed the bench that upheld the constitutionality of Criminal Defamation as an offence under Sections 499 and 500 IPC and held that an individual’s right to criticise is not absolute and right to free speech cannot mean right to defame others.
  • Online availability of FIRs[7]: Justice Misra was also one of the judges who directed the Union of India and the States to upload the FIRs on the official websites of police within 24 hours of registration so that the accused can download it and file appropriate application before the court.

Justice Misra, who, also serves as the Executive Chairman of the National Legal Service Authority, was the brain behind the idea of establishing Nyaya Sanyog i.e. Legal Assistance Establishments in all the State Legal Services Authorities in order to facilitate easier access to information with regard to the legal services.

Justice Misra is presently hearing some very important cases like the Whatsapp data privacy issue, Sahara mattersearch engine regulation matter, etc. Justice Misra was also a part of the 7-judge bench that imposed 6 months imprisonment on Justice CS Karnan for being in contempt of court. He is also a part of the 3-judge bench that will be hearing the Ayodhya matter from August 11.

Trivia: Did you know that Justice Misra will be the second person from his family to serve as the Chief Justice of India? His uncle Justice Rangnath Misra was the 21st Chief Justice of India.

 

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[1] Mukesh v. State, (2017) 6 SCC 1

[2] Yakub Abdul Razak memon v. State of Maharshtra, (2015) SCC Online SC 661

[3]http://www.thehindu.com/news/national/supreme-court-judge-dipak-mishra-who-handled-yakub-memon-case-receives-threat-letter/article7511506.ece, last visited on 09.08.2017

[4] Shyam Narayan Chouksey v. Union of India, (2017) 1 SCC 421

[5] Vikas Yadav v. State of UP, (2016) 9 SCC 541

[6] Subramanian Swamy v. Union of India, (2016) 7 SCC 221 

[7] Youth Bar Asso. Of India v. Union of India, (2016) 9 SCC 473

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): An RTI application was filed in PMO’s office in 2015 seeking for the certification along with the copies of relevant files that Jana Gana Mana is our National Anthem, that Vande Mataram is the national song, that Tiger is the National animal, that peacock is national bird, that lotus is National flower, and that hockey is the National game.

The PMO had completely ignored the questions pertaining to National Anthem and transferred the questions related to peacock; lotus and tiger to Ministry of Environment and Forests and PIO, MoEF transferred the application to CPIO, Wildlife division, MoEF which was further forwarded to National Tiger Conservation Authority. The NCTA officer mentioned that the “national anthem and national song do not pertain to their authority.”

In the first and second appeal to authorities, it was considered that information was provided in time and then the appeal was filed before Central Information Commission. It noted that the RTI application on such important national aspects, CPIOs of all the offices passed it on to others without application of mind. The CIC went on to observe that RTI request was dealt with in such a routine procedural and formal manner, but gave no outcome. CIC said that the apex bodies of administration have washed off their hands from paying heed to the RTI request and iterated that such habit of shirking responsibility is biggest obstruction to access of information to public in India.

CIC even criticized MoEF for not being able to present official records regarding the national animal, national bird and national flower. However, during the hearing, a letter dated 30.05.2011 was presented before the Commission which said, “the MoEF hereby re notifies the tiger as national animal and peacock as national bird of India”. CIC found that the MoEF had lost those significant records and only because of the present RTI application, it re-notified the national status to tiger and peacock and surprisingly, it still did not mention anything about lotus.

It further noted that neither the PMO nor the MoEF replied about the national anthem and national song and observed that such silence gives rise to doubts whether the Union Government has any records about Jana Gana Mana and Vande Mataram and recalled the latest judgment of Supreme Court on National Anthem which reminded citizens of their duty to respect National Anthem. [Shyam Narayan Chouksey v. Union of India, 2016 SCC OnLine SC 1449]

The Commission then provided information on how the first stanza of the five stanza song by Rabindra Nath came to be adopted as National Anthem and provided all the relevant sources like from 1911 annual session of Indian National Congress and also, a relevant portion of the 26th session of the Congress. By citing these sources and reports where Jana Gana Man was sung at the beginning of 20th Century, CIC went on to clear the hoax that was in the air for several years in the country that Jana Gana Mana was originally sung in praise of George V or that it was adjudged as best national anthem in the world recently etc. CIC cited a website named ‘satyashodh’ which clears this hoax and provides evidence that Jana Gana Man was never sung in praise of George V and mentions that confusion arose when subsequent to this song, a different song, “Badshah Humara” written in Hindi by Rambhuj Chaudhary, was sung on the same occasion in praise of the monarch while, the now National Anthem was in praise and remembrance of God.

Not only this, but CIC also cleared the difference between Vande Mataram and Jana Gana Man and why Vande Mataram was National Song and, not the Anthem. It observed that the sentiments in Jana Gana Mana have been expressed keeping the state in view, however, the sentiments expressed in Vande Mataram denote the nation’s character and style and quoted the historical texts by Mahatma Gandhi and Jawahar Lal Nehru about the same.

CIC mentioned the texts from Constituent Assembly where the makers of the Constitution accorded the National song as well as anthem, the same and equal status on 24th January, 1950. With this RTI application, CIC perceived that at the backdrop of confusion created by the social media propaganda of unauthentic statements, nation needed comprehensive authentic information about their national anthem and national song. It reminded the citizens of their duty to respect National Anthem as conferred by Article 51-A and made an important observation that in order to instil respect for the national anthem, the Union Government should also fulfil their duty to educate people about their historical importance, significant reasons for declaring it as national anthem and held that response by PMO and MoEF to request for information about National anthem and song was breach of citizens’ right to information. It discerned that before punishing the citizens for not respecting the National Anthem, they must be informed of the reason to do so and its greatness.

The CIC said that if all the relevant information the historical evidences to explain the significance of the national anthem, national song, national animal, bird and flower besides national game is gathered, it will help in long way to instill and promote Nationalism and patriotism in people of India. Commission directed CPIO of MoEF to provide entire information along with the copies of the files pertaining to conferring national status to animal, bird and flower, without further transferring the RTI application in bits and pieces to different Departments. CIC remanded the question related to National anthem and song to the CPIO of PMO and directed the MoEF to transfer the sports part of RTI question to Ministry of Sports. [Harinder Dhingra v. PIO, MoEF, 2016 SCC OnLine CIC 15729, decided on 27-12-2016]

Case BriefsSupreme Court

Supreme Court: Modifying the order dated 30.11.2016 where it was directed that 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, the 3-Judge Bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ directed that the persons who are wheel chair users, those with autism, persons suffering from cerebral palsy, multiple disabilities, parkinsons, multiple sclerosis, leprosy cured, muscular dystrophy and deaf and blind be treated not to be within the ambit of the said order.

The Court had, on 30.11.2016, laid down certain directions to be followed in order to ensure respect towards the National Anthem as well as to the National Flag as 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. [Shyam Narayan Chouksey v. Union of India, 2017 SCC OnLine SC 433, order dated 18.04.2017]

Case BriefsSupreme Court

Supreme Court: In the writ petition where it was prayed a National Policy be framed to promote and propagate the National Anthem, National Song and National Flag in spirit of the Article 51-A to achieve the great golden goals, as set out in Preamble of the Constitution of India, the 3-Judge Bench of Dipak Misra, R.Banumathi and mohan M. Shantanagoudar, JJ said that Article 51-A of the Constitution of India does not refer to ‘National Song’ and only calls for respect towards the National Anthem and National Flag as a fundamental duty.

However, the Court agreed to hear petition on other aspects, including the feasibility of singing /playing the National Anthem and National Song in Schools on every working day and tagged it with Shyam Narayan Chouksey v. Union of India, 2017 SCC OnLine SC 129, which relates to the similar matter. [Ashwini Kumar Upadhyay v. Union of India, 2017 SCC OnLine SC 144, order dated 17.02.2017]

Case BriefsSupreme Court

Supreme Court: Modifying the order dated 30.11.2016, where it was directed that 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, the bench of Dipak Misra and R. Banumathi, JJ said that the audience need not stand when the National Anthem is sung or played in the storyline of a feature film or part of the newsreel or documentary.

Earlier on 9.12.2016 has modified the earlier order regard being had to the handicapped persons keeping in view the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995. In pursuance of the said order, guidelines were issued on 21.12.2016 prescribing the modalities for the persons with disabilities to show respect to the National Anthem. However, taking note of the fact that the Parliament has brought a new legislation called ‘The Rights of Persons with Disabilities Act, 2016 which repeals the 1995 Act, the Court asked the Union of India to issue appropriate notification/guidelines in view of the language employed in the Rights of Persons with Disabilities Act, 2016 within a week. [Shyam Narayan Chouksey v. Union of India, 2017 SCC OnLine SC 129, order dated 14.02.2017]

Case BriefsSupreme Court

Supreme Court: Stating that the love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag, the Court issued the following directions:

  • The National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.
  • There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour.
  • National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.
  • 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.
  • 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.
  • When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.
  • The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

The bench of Dipak Misra and Amitava Roy, JJ said 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. [Shyam Narayan Chouksey v. Union of India, 2016 SCC OnLine SC 1411, decided on 30.11.2016]

Case BriefsSupreme Court

Supreme Court: In the writ of mandamus seeking a direction asking the Union of India to specify what would be constituting disrespect and abuse of the National Anthem, the Court, considering the plea of the petitioner, issued notice to the Union of India returnable within 3 weeks.

The petitioner, along with the plea, also gave the below mentioned suggestions to avoid the abuse of the National Anthem:

  • There should be no commercial exploitation to gain financial advantage or any kind of benefit.
  • There should be no interruption in between till the completion of National Anthem and no abridged version of National Anthem shall be sung at any point of time.
  • There should not be dramatization of the National Anthem and it should not be sung in an entertainment programme.
  • It should not be sung before the people who do not understand it unless they are properly apprised that when the National Anthem of India is to be played, they are required to show respect.
  • It should not be printed on undesirable objects and should not be displayed in such a manner and at such places which may be disgraceful to its status and may tantamount to disrespect.

Stating certain examples that on one occasion, during an interview, the National Anthem was played to test the behavioral pattern of the candidate and that on certain occasions, the same is played in a variety show to dramatize the whole thing, the petitioner contended that sometimes the National Anthem is sung in various circumstances which are not permissible and cannot be legally countenanced regard being had to the national honour. It was also prayed that directions should be issued that the National Anthem should be played in the cinema theaters across the country before the feature film and proper norms and protocol should be fixed with regard to playing or singing of National Anthem in an official function and the functions where certain constitutional dignitaries are present in strict compliance. The Bench of Dipak Misra and Amitava Roy, JJ will hear the matter on 30.11.2016. [Shyam Narayan Chouksey v. Union of India, 2016 SCC OnLine SC 1211  order dated 28.10.2016]