I am reminded of the slow-motion chopper landing sequence, filmed at the Siachen Glacier as Jana Gana Mana plays in the background, a regular feature in many theatres. Going by the examples given in the order (of the National Anthem being used as a tool to test the reactions of prospective job candidates), it is tempting to think that it is exactly this sort of contextual misuse of the National Anthem that the petitioner in the National Anthem case seeks to curtail: The kind that charges up our ever-willing keyboard warriors on Twitter and Facebook to wax eloquent about the sufferings of soldiers on our borders at every opportunity.
But there is an insidiousness about the ‘interim measures’ issued by the Supreme Court that was not immediately apparent. Back in 2004, three judges of the Supreme Court, in Karan Johar versus Union of India, had observed: “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.”
The Supreme Court at the time was dealing with the challenge to an order authored by Justice Dipak Misra, penned in his usual verbose style. Misra was then a judge at the Madhya Pradesh High Court, and is currently in line to become the next Chief Justice of India. Unusually, the petitioner before the Madhya Pradesh High Court was the same gentleman who has now petitioned the Supreme Court — Shyam Narayan Chouksey.
Ordinarily, judicial discipline would call upon Misra to follow the earlier ruling in Johar’s case — especially since three judges decided that case while the present National Anthem case is being heard by a bench of two. But there is a catch: In 2006, following a Review Petition by Chouksey against the judgment in Johar’s case, the ‘issues of law’ raised in the matter were reopened for determination in an ‘appropriate case’. The earlier order was recalled.
It is rare for the Supreme Court to even hear Review Petitions — a remedy usually reserved for ‘errors apparent on the face of the record’, but the apex court appears to have done so in this case because not all the questions raised before the Madhya Pradesh High Court were covered by the original Supreme Court order.
After a 10-year wait — an ‘inordinate delay’ going even by our slow disposal rates — Chouksey had his ‘appropriate case’, and (most fortuitously) his ‘appropriate court’.
In all fairness, would such happenstance make this a fit case for recusal on the ground of subject bias? Judges are occasionally afforded the opportunity of overruling their own decisions; others prefer to simply recuse themselves and let another bench decide the case. Only time will tell what this court will do. There is hope yet that the unfortunate pontifications on nationalism in the order may be reconsidered at the final hearing stage. After all, the order is only an ‘interim measure’ and circumspection based on the current backlash may prompt a different view later on.
The author is a practicing lawyer at the Bombay High Court