Litigation Lounge


SayakDasguptaA few years ago, I had read an article about the peculiar social and cultural differences between Japan and the west. It was written by an American man who had married a Japanese woman and settled down in Tokyo. He wrote of an incident when his parents-in-law had come to eat dinner. As they entered, the writer, as a matter of habit, proceeded to help his mother-in-law take her coat off and put it on the coat rack. He then realised that his father-in-law had not taken too kindly to that rather innocent act. The writer’s wife told him later that while taking your guest’s coat was a gesture of polite hospitality in the west, in Japan it was an act of deep intimacy – one only husbands can do for their wives. When it comes to love, the Japanese are culturally not as flamboyant, effusive and demonstrative as the Americans or Europeans (the Japanese millennial might be more westernised, but this seemingly still holds true for most of Japan). They don’t hug and kiss each other all the time. They don’t say “I love you” at the end of every conversation. Instead, the Japanese show their affection for their spouses and even their children through a hundred small acts that demonstrate caring and intimacy. This restrained, understated form of love might seem strange and even silly to westerners, but that doesn’t make it any less valid. In fact, it has its own charm and beauty.

This is also true of Indians. I am sure only a minority of the Indian readers of this blog will have actually heard their parents or grandparents openly profess their love for each other. And your mother or father might not actually say the words, but they show you they love you in other ways (making your favourite food, feeding you before they eat, giving you extra portions), and perhaps you do the same. Now, imagine if some people found this unspoken love ridiculous and made it a rule that every morning before you take a bath you must step outside your house and shout “I love my mother/father/spouse” loudly, for everyone to hear. Isn’t that strangely intrusive and oddly obtrusive at the same time? What does bathing have to do with loving your family? Why do you have to demonstrate to everyone regularly that you love your mother? Do you really need to remind yourself that you love your father? Will this make you love them more?


Shyam Narayan Chouksey (Image from Facebook)

The Supreme Court’s interim order pursuant to the writ petition filed by Shyam Narayan Chouksey seems to suggest that your love for your country should be demonstrated openly and publicly every time you go to a theatre to watch Shah Rukh Khan romance an actress in the Swiss Alps or Salman Khan single-handedly beat up the entire Indian mafia. Many people have asked a very pertinent question: why movie theatres? On the face of it, playing the national anthem before a film might seem like quite an arbitrary way to instil patriotism in people. It’s like making people sing ‘Vande Mataram’ every time they open a book. But film as a medium is optimal for eliciting an affective reaction. When people go to watch a film, you have a large group of people in a single enclosed space completely focused on whatever is happening on the screen. It is the perfect setting to make you feel whatever the person in control wants you to feel. As author China Mieville has said, “You know how easy it is to emotionally manipulate you. Hollywood is a factory to manipulate you. That is what it does. That is what it is for. Emotion is very easy to manipulate. You’re in a darkened room, there are loud noises, there’s light shining in the darkness. It is an overwhelming experience in certain ways. I think quite a lot of the time when people say ‘I liked it’, what they mean is something along the lines of ‘I was temporarily stupefied by noises and lights for which my limbic system has no adaptive evolutionary mechanisms to respond with.’” The movie theatre’s unique ability to sweep you off your feet is why it has historically been the preferred venue for propaganda. Of course, it was in a movie theatre where this all began.


The disputed scene from Kabhi Khushi Kabhi Gham (Image from YouTube)

In 2001, Shyam Narayan Chouksey was in Jyoti Talkies, a movie theatre in Bhopal, watching Karan Johar’s Kabhi Khushi Kabhi Gham. In one scene clearly designed to pull at the heartstrings of the patriotic NRI, an Indian-origin child born in the UK surprises his parents by singing the Indian national anthem at an event in his preppy private school. Mr. Chouksey immediately stood up for the anthem, but was inconsolably dismayed to see that everyone else hadn’t done the same. In fact, some even booed at him (probably because he was blocking the screen). He was also angered by the movie’s treatment of the national anthem. He filed a writ at the Madhya Pradesh High Court and it went to a double bench. Coincidentally, one of the judges was Dipak Misra J, the same judge who delivered the interim order on November 30, 2016. The 2003 judgment delivered by Misra J is quite a read, with several paragraphs dedicated to flowery, grandiose, baroque (to the point of incoherence) praise of the national anthem. “The national anthem is pivotal and centripodal to the basic conception of sovereignty and integrity of India,” it declares. “It is the marrow of nationalism, hypostasis of patriotism, nucleus of national heritage, substratum of culture and epitome of national honour.” Denouncing the scene in the film in which a young boy falters while singing the national anthem, Misra J writes: “They have not kept in mind ‘vox populi, vox dei’. The producer and the director have allowed the National Anthem of Bharat, the alpha and omega of the country to the backseat. On a first flush it may look like a magnum opus of patriotism but on a deeper probe and greater scrutiny it is a simulacrum having the semblance but sans real substance. There cannot be like Caesar’s thrasonical brags of ‘veni, vidi, vici.’ The boy cannot be allowed to make his innocence a parents rodomontrade, at the cost of national honour. In our view it is contrary to national ethos and an anathema to the sanguinity of the national feeling. It is an exposition of ad libitum.” The High Court’s decision was to ban Kabhi Khushi Kabhi Gham until the scene in question was deleted.


Justice O. Chinnappa Reddy who delivered the Bijoe Emmanuel judgment (Image from

The judgment referred extensively to the landmark case of Bijoe Emmanuel & Ors. vs. State of Kerala & Ors. AIR 1987 SC 748. On July 8, 1985, the Emmanuel siblings – 15-year-old Bijoe, 13-year-old Binu and 10-year-old Bindu – were attending school when the headmistress announced that the national anthem would be sung in the classroom. The siblings stood up but did not sing, as they were Jehovah’s Witnesses, a specific Christian sect that prohibits its followers from singing in praise of anything or anyone apart from their god. Their father, V.J. Emmanuel asked for a special concession for his children on religious grounds and the headmistress and senior teachers agreed. However, word reached a member of the legislative assembly who raised the matter in the house and soon a senior school inspector ordered the headmistress to expel the children. Mr. Emmanuel filed a writ petition in the Kerala High Court, but when the decision went against him, he appealed to the Supreme Court. The Supreme Court upheld the students’ right not to sing the national anthem, stating that their fundamental rights under Articles 19(1)(a) and 25(1) had been infringed. In its 2003 judgment, the Madhya Pradesh High Court seems to have relied specifically on the following paragraph from the Bijoe Emmanuel judgment: “We may at once say that there is no provisions of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. It is true Art. 51-A(a) of the Constitution enjoins a duty on every citizen of India ‘to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.’ Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing.”

Misra J seems to have relied on a literal reading of this paragraph when he, in the interim order dated November 30, 2016, made it compulsory for all moviegoers to stand up when the national anthem plays in a movie theatre. He writes in the order, “Be it stated, a time has come, the citizens of the country must realise 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. [sic] The idea is constitutionally impermissible.” And showing respect means standing because that has been mentioned in the Bijoe Emmanuel judgment. One wonders, if there had been no Bijoe Emmanuel judgment, would the order have made it compulsory for people to sing it as well? Just like there is no provision of law that obliges anyone to sing the national anthem, there is also no provision that obliges anyone to stand for the national anthem. The Prevention of Insults to National Honour Act, 1971, a tiny act with just four sections, states in Section 3: “Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.” Would sitting quietly during the singing of the national anthem constitute prevention of singing the national anthem?


Justice Ruth Bader Ginsburg

Earlier this year, American football player Colin Kaepernick caused a huge controversy in the US when he sat or kneeled during the American national anthem in a series of matches to protest the killing of several black US citizens by the police. Was he being unpatriotic? Many of his fellow athletes didn’t think so and joined him. When asked about it in an interview, Justice Ruth Bader Ginsburg said, “I think it’s really dumb of them. Would I arrest them for doing it? No. I think it’s dumb and disrespectful. I would have the same answer if you asked me about flag-burning. I think it’s a terrible thing to do. But I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act. It’s dangerous to arrest people for conduct that doesn’t jeopardise the health or well-being of other people. It is a symbol they are engaged in.” This is the point. Forcing people to demonstrate faux patriotism under the threat of arrest is dangerously close to totalitarianism. Playing the national anthem in movie theatres serves no reasonable purpose and has, in fact, been the cause for violence in the recent past, including the case of Salil Chaturvedi, who was assaulted in a movie theatre in Goa for not standing up for the national anthem. Why did he not stand up? He is a paraplegic. In the 90s, he had represented India in two wheelchair tennis tournaments. “Irrespective of my contribution to the country, I still need to prove my patriotism,” he said. People have varied relationships with their nation and have varied ways of expressing them. Forcing everyone to conform to one arbitrary way of engaging with their country will not make them more patriotic. As Justice Chinnappa Reddy said at the very end of the Bijoe Emmanuel judgment, underlining, in my opinion, the true spirit of the decision: “our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.”


Rabindranath Tagore

One last thing. The author of our national anthem, Rabindranath Tagore, was often very vocally critical of the very concept of a “Nation”. In 1916, he visited Japan and was alarmed by what was being done in the name of nationalism there. I started this piece with Japan and it seems natural that I should end with Tagore’s observations about it: “I have seen in Japan the voluntary submission of the whole people to the trimming of their minds and clipping of their freedom by their government, which through various educational agencies regulates their thoughts, manufactures their feelings, becomes suspiciously watchful when they show signs of inclining toward the spiritual, leading them through a narrow path not toward what is true but what is necessary for the complete welding of them into one uniform mass according to its own recipe. The people accept this all-pervading mental slavery with cheerfulness and pride because of their nervous desire to turn themselves into a machine of power, called the Nation, and emulate other machines in their collective worldliness.”

(Sayak Dasgupta wanders around looking for things to do.)

Human Rights

Sitting down for patriotism – Salman’s case highlights the legal provisions that stifle dissent

While denying bail to Salman, the trial court judge noted that his crime was worse than murder. What was this alleged crime? Not standing up when the national anthem was played in a cinema before a movie. The police also alleged that he hooted when the anthem was played, though Salman disputes it. For added measure, the police also went through his Facebook profile and found some offensive posts.


Based on these alleged facts, he was arrested for offences under Section 124A of the Indian Penal Code, 1860 (“IPC”), Section 66A of the Information Technology Act, 2000, and Sections 2 and 3 of the Prevention of Insults to National Honour Act, 1971. Section 124 of the IPC contains the offence of sedition and Section 66A is a broadly phrased legal provision which allows the criminalisation of any content shared online. The Prevention of Insults to National Honour Act, 1971 is a special statute enacted to provide for the use of national symbols and emblems and to penalise for the improper use of the National flag or the anthem. On its very face, Salman’s case seems like an instance of abuse of law. Many legal commentators however, are now questioning even the very basis of the law which permits such abuse.

The offence of sedition

Sedition, as it originally stood under Section 124A of the IPC, was clear in its intent. It penalised any person who, “excites, or attempts to excite, feelings of disaffection to the Government established by law in British India”. In the case of Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955), the Supreme Court after recounting the trial of Bal Gandharar Tilak under the same provision, held that for any speech or act to be made even cognisable for the offence of sedition, a positive act was required. This alleged act needed to go beyond a mere absence of affection towards the State. An offence under Section 124A, it went on to note, can apply to, “only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.” Merely not standing up when the national anthem is played, it seems on the face of it, does not amount to the offence of sedition. A legal offence, if any, will be left to the more specific law in this respect that is contained under the Prevention of Insults to National Honour Act, 1971.

Even otherwise, not standing up when the national anthem is played may be morally reprehensible but it may be an act of dissent. It may properly be within the domain of offensive speech which exists as a fundamental right. To paraphrase the inimitable Gore Vidal, it is better to burn the flag than the constitution. In Texas v. Johnson (491 U.S. 397 (1989)), Justice Brennan, agreed stating, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents”.

Aseem_TrivediSurely our constitutional freedoms do not extend to burning our nation flag or abusing the anthem. Those same freedoms however, permit us to express our dissent with due respect. Not standing up in a cinema hall when the national anthem is played, squarely falls within the permissible threshold of dissent – dissent, which in any case cannot be charged with sedition. Even the cartoonist Aseem Trivedi was accused under exactly the same provisions as Salman has been. Only after he was arrested and the Mumbai Crime Branch came in for heavy criticism did the Government of Maharashtra drop the charges of sedition against him before the High Court of Bombay.

Recent use of Section 66A of the Information Technology Act

Much has already written about Section 66A. In the interest of brevity, it is only relevant to state that the provision has come in for widespread criticism due to its abuse. A batch of at least six petitions is pending before the Supreme Court of India. All of them challenge it for violating the right to freedom of speech and expression. Though much has been written about the legal merits of Section 66A, not much has been written about the state’s defence of the provision during the proceedings before the Court. Essentially, the state has argued that the problem is not with the provision itself, but only with its implementation. To bolster its argument, a “check” on arrest for offences under Section 66A has been issued by way of a direction dated January 9, 2013.

On May 16, 2013, during a preliminary hearing of a group of petitions questioning the vires of Section 66A, it was noticed that during the pendency of the petitions, arbitrary arrests had continued unabated. Concerned with this, the Court enquired about extending the Union government’s notification to all state governments. This was necessary because ‘law and order’ is a state subject and without such a direction, the Union government’s ‘check’ would be limited to the territories administered by it.

The check, that is, the Union government’s direction, had mandated that any arrests for a complaint registered under Section 66A could not be affected without prior approval from the Inspector General of Police or a police officer not below the rank of the Deputy Commissioner of Police. The reasoning offered was that the abuse of the law had been occuring at the level of the local police and that by mandating prior approval of a senior police officer, there would be a level of oversight.

Recent arrests under 66A belittle this reasoning

1. In the last week of May, 2014, five persons were arrested by the Bangalore Police for sharing a MMS via WhatsApp. The MMS had spoofed the BJP election slogan “Abki Bar Modi Sarkar” with the headline, “Abki Baar antim sanskaar”.

2. In the first week of June, 2014, Devu Chodankar, a shipbuilding professional from Mumbai, was detained and threatened with arrest by the Goa State Police for posting a message critical of Narendra Modi being the BJP’s Prime Ministerial candidate. He feared arrest, and prior to the case obtaining media publicity, the police had asked for his custody.

3. In the second week of June, 2014, the principal and six students of a government polytechnic instituion at Kunnamkulam were arrested by the Kerala State Police for adding Prime Minister Modi’s photograph in the college magazine under a list of “negative faces”.

4. In the third week of June, 2014, the principal and eleven students of the Sree Krishnan College at Guruvayur were arrested by the Kerala State Police after its campus magazine was alleged to have used “objectionable and unsavoury” language against Modi in a crossword puzzle.

We can add Salman’s case to this list. He has been charged under Section 66A after the police went through his Facebook profile after a complaint was filed against him for not standing up in the cinema hall. Even though Section 66A has been on the statute books since 2008, there is no data published by the National Crime Records Bureau about the FIRs registered or the arrests made. In its absence, all we have is this anecdotal evidence to show continued abuse.

Technical objections may be used to fault these illustrations. For instance, it can be argued that a wider trend cannot be established on such a small sample size or that data has been used selectively. This criticism does not mitigate the abuse which is apparent in these cases individually. For the persons arrested in these cases the safeguard implemented by the Supreme Court has been ineffective. It leaves one to question the defence of illegality in the process of implementation of Section 66A, as opposed to the principal provision itself. Salman’s case is precisely what Section 66A is meant for and used for. It is used through its abuse.

Offences under the Prevention of Insults to National Honour Act

The proper legislation under which any criminal offence should have been alleged (if any) is the Prevention of Insults to National Honour Act, 1971. The Act, under Section 3 provides that,
Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.

Here it is important to note that, it is not enough that a person does not sing the national anthem, but must also prevent its singing or cause a disturbance. Hence, the Supreme Court in the case of Bijoe Emmanuel v. State of Kerala ( (1986) 3 SCC 615) held that a prosecution under the Act for remaining silent when the national anthem is played in a school assembly violates the freedom of speech and expression under Article 19(1)(a). Though major parts of the Court’s opinion extend to the right of minorities to religion and faith preventing the petitioner from signing the national anthem, its determination on the refusal to sing along was also premised on the freedom to speech and expression.

Facebook Images-470x246

Further legal complications also exist for the prosecution of Salman under this law. The first is that the Union Government has issued orders for the enforcement of the Act. These orders define how, when, and where the national anthem will be played. They go towards permitting it to be played for ceremonial occasions and even suggesting that it should not be played unless proper decorum can be maintained. Surely, wedged between seats with barely enough place to stand while other movie goers jostle for space is not the best place to mark respect for the motherland.

The standing orders take this into consideration and mention that there is no obligation to stand if the national anthem is played, “in the course of exhibition”. The Supreme Court itself has noticed it in the case of Karan Johar v. Union of India ( (2004) 5 SCC 127) where it has stated that, “We are satisfied that in view of the instructions issued by the Government of India that the national anthem which is exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is not expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the national anthem.”.

Technical arguments may be advanced as to what constitutes, “in the course of exhibition” or whether sitting down when the national anthem was being played constitutes an offence under Section 3. Even facts may be disputed. There are versions which say that Salman was part of a group of students who passively kept sitting when the national anthem was played. In sum and substance, the offences alleged even with respect to Prevention of Insults to National Honour Act, 1971 will need to be investigated and put through a process of trial. Even then enough defences exist in law. A criminal process is launched which will not end at least for a decade merely because a person failed to stand up when the national anthem was played. Accused for this, Salman was jailed for more than a month. He has arrested on August 20, 2014 and was granted bail on September 22, 2014. Before availing his liberty, he had to execute a bail bond of two lakh rupees. Bail is not the end. The case will continue to drag on through years of trial. The wheels of justice will move slow and grind fine. In the meantime, Salman may go to watch another movie with his friends. But if the national anthem plays, it is questionable what he will feel for the country – love or fear.

(Disclosure and a personal note: I have represented Mr. Aseem Trivedi in the Supreme Court of India for his impleadment in the Shreya Singhal Petition and have been part of PUCL’s legal team in its challenge to Section 66A, the Intermediary Rules, 2011, and the Blocking Rules, 2009. This article contains an accurate and truthful report of court proceedings and is premised on a legal analysis of provisions and their implementation. While I am respectful of the pendency of these cases, the rule of sub-judice does not prevent comment on issues which involve considerable public interest during such pendency. Such comment is also necessary given that penal provisions are continuously being used to arrest any person voicing dissent.)

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.