The Supreme Court's Wednesday order that all cinema theatres should play the National Anthem before a movie is screened has come under immense criticism. Gautam Bhatia, who practices law in Delhi and teaches visiting courses at the National University of Juridical Sciences, in his blog post — The Illegality of the Supreme Court’s National Anthem Order — came down heavily on Supreme Court's order and said that the observation made by the apex court is an example of "judicial censorship". Bhatia writes:
Judicial censorship is suo motu judicial action restricting the freedom of speech, in the absence of an existing law. In my view, judicial censorship is not contemplated by the Constitution, and judicial orders that engage in this form of censorship are illegal and void.
Arguing that the freedom of speech and expression can only be restricted (cites Article Article 19(1)(a) and Article 19(2)) with an existing law and in the absence of which one cannot impede it, Bhatia questions the legality or the illegality of Supreme Court's order.
(If) Supreme Court judgments and orders were to constitute “law” under Article 13, then every such judgment or order would be subject to a further fundamental rights challenge. Dipak Misra J’s order, for instance, could be challenged in a separate writ petition by either the cinema owners or cinema-goers as a violation of Article 19(1)(a) of the Constitution. Perhaps this might not be such a bad thing, but in Naresh Mirajkar vs State of Maharashtra, a nine-judge bench of the Supreme Court categorically held that this could not be done.
In the end, Bhatia argues that the Supreme Court argument is only justified under Article 142 which authorises the Court to pass any decree or order "necessary for doing complete justice in any cause or matter pending before it."
However, Article 142 also specifies that this must be done in “the exercise of its jurisdiction.” If my argument is correct, the Court does not have the jurisdiction to restrict speech in the absence of a law, simply by passing orders. And Article 142 cannot be a carte blanche to do anything that takes judicial fancy on any given day.
The Supreme Court on Wednesday ordered that the National Anthem must be played in public theaters across the country before a movie, minus any dramatisation. It also ordered that the national flag be shown on screen when the anthem is played. The apex court directed the Centre that the order should be given effect in a week's time and be circulated to all the states and Union Territories.
A bench of Justice Dipak Misra and Justice Amitava Roy said that this would instill a feeling of constitutional patriotism and nationalism. "It is the duty of every citizen to abide by the ideals ingrained in the Constitution and as such show respect to the National Anthem and the national flag," the bench said.
"People must feel this is my country and this is my motherland," the bench said. "At the root of protocol for national anthem, is respect for national identity, integrity and constitutional patriotism," the bench said.