Following the Supreme Court’s interim order on the way the National Anthem should be played or sung before the start of a feature film in cinema halls across the country, filmmakers should be wary of using ‘Jana Gana Mana’ even as the part of the plot of the film, according to legal experts.
The apex court on Wednesday directed that the order should be put into effect within 10 days across the country. The matter has been listed for further hearing on February 14, 2017.
As per the directions by the apex court, the National Anthem must be played or sung before the start of a feature films in cinema halls. The order also says that people should stand when the National Song is being played or sung.
While a large number of people welcomed the order, many found it bizarre and they put forth sharp responses on whether it is right, or is it a violation of the Fundamental Rights, to force someone to stand for the National Anthem or sing it. While the ethical and legal aspects of the directions may be debated for long, the Centre is unlikely to raise any objection to the order.
Though the apex court hasn’t said it explicitly, the order implies that filmmakers would be in trouble if they use the National Anthem as part of the plot of their movies. Clause (a) of the order says: “There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilised by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.”
Srajita Saharia, a Mumbai-based lawyer, says filmmakers should now avoid using the National Anthem in their films. “Going strictly by the order, it is safer to avoid usage of the National Anthem in films as it would be considered “exploitation” and “dramatization”,” she told FE Online.
Saharia feels that the order would curb creativity and even the national sentiments. “However, I personally do feel it is putting restraints on creativity as well as the Indian nationalistic sentiments,” she said.
The apex court, however, said in the order that the directions would “instill the feeling within one, a sense of committed patriotism and nationalism.” The order further said: “The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.”
Advocate Rajnish Kumar Jha, a partner at Delhi-based law firm Actus Legal Associates, too said that filmmakers cannot use National Anthem in their film as long as the order is in effect. When asked what if filmmakers want to use the National Anthem in their films, Jha said they can but they would have to display only the National Flag on screen as per Clause (f) of the order. The clause says, “‘When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.”
Another partner at Actus Legal, Nishant Kumar Srivastava, said, “As per these interim directions, it is very clear that the filmmakers cannot use National Anthem as part of the plot of their movie.”
Srivastava shares two reasons why filmmakers would avoid using the National Anthem in their work. “One, they might fear being hauled up by the courts and second, for the fear that anyone can file a writ petition in any of the High Courts and or in the Supreme Court, which may unsettle their release dates and may cause financial loss.”
Commenting on the order, Srivastava said, “This interim order seems to be more of a persuasive in nature than having an authoritative command of the Supreme Court, the absence of any penal consequence which might get attracted if someone disobeys the same is very clear.”
The order is still interim in nature and as Srivastava says, no penal provisions have been suggested for the violation of the directions.
Meanwhile, the order has led many “experts” to warn people to be wary of the “consequences” if they fail to abide by the directions. However, Srivastava says, “We need to wait till February 14, 2017 to finally comment on the said order. Even in the meantime, the same will be difficult to enforce since there is no clarity as to who would be responsible for the strict observation of the same.”
The Supreme Court bench of Justices Dipak Misra and Amitava Roy passed the order on Wednesday while hearing a writ petition filed by Shyam Narayan Chouksey. The apex court has sought Centre’s reply on the matter. Chouksey has been pursuing the matter since 2003 when he moved a petition in the Madhya Pradesh High Court accusing filmmaker Karan Johar’s of insulting the National Anthem in ‘Kabhi Khushi Kabhi Gham’.
Chouksey has told IE that he is not with any political party.