It is "unfortunate" that someone has to knock the doors of the court for ensuring respect to the national flag and national anthem, government told the Supreme Court on Tuesday, asserting that respect for them was "non-negotiable".
As the government stated its position on the issue, an apex court bench, comprising Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar, modified its earlier order to exempt those with disability from standing up at cinema halls when the national anthem is being played.
"We are inclined to modify the orders and direct 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 orders passed by this court," the bench said.
At the outset, Additional Solicitor General Tushar Mehta told the bench "it is unfortunate that someone has to approach this court for ensuring due respect to national flag and national anthem but what is most unfortunate that some section is opposing it.
"Respect for national anthem and national flag is non-negotiable and every citizen is bound to show due respect to the symbols of national pride."
The apex court had in its December 9 order clarified that a physically-challenged person, who goes to the cinema hall to watch a film, need not stand up if he is incapable of standing but must show such conduct which is commensurate with respect for the national anthem.
The apex court also sought a response from the Centre in four weeks on a plea seeking framing of a policy to promote the national anthem and the national song.
The petition, filed by Delhi BJP spokesperson and advocate Ashwini Upadhaya, also sought to direction for mandatory singing of national anthem and the national song in Parliament, assemblies, courts, schools and colleges on working days.
The court's order had come on a PIL filed by one Shyam Narayan Chouksey seeking directions that the national anthem should be played in cinema halls across the country before a film begins and proper norms and protocol be fixed regarding its playing and singing at official functions and programmes where those holding constitutional posts are present.
During the hearing, senior advocate Rakesh Dwivedi appearing for Chouksey, said a direction should be issued to the government to amend the law as there were penal provisions for those who disrespect the national flag, but there are no such provisions for those who show disrespect to the anthem.
Senior advocate C U Singh, appearing for Kerala Film Society, sought recall of the earlier order making playing of the national song in cinema halls mandatory before screening of films saying that courts should not venture into the field of the legislature.
"We show utmost respect to the national flag and national anthem. But it should not be considered anti-national to argue against this petition or seeking recall of the order," Singh said.
Mehta intervened and said that he never used the word anti-national but citizens should show due respect to national flag and national anthem.
To this, the bench asked "is showing respect to national flag and national anthem not inherent in our Constitution?"
Singh said they were not against showing respect to the flag but it does not mean that the court's order was beyond the scope of challenge.
He said the petition is not maintainable as it was Parliament's or the government's job to ensure that cinema halls play the anthem before the screening of a film.
"There are separation of power. This is executive domain and by PIL court cannot assume power of legislation," the senior advocate said adding that court cannot compel anyone to play the national anthem at a particular time.
The bench asked petitioner to file an amended petition with additional grounds within two weeks and allowed intervention application of Maharashtra and Rajasthan.
It clarified that the plea of Kerala film society seeking recall of earlier order will be heard along with the main petition and posted the matter for August 23.
On February 17, the apex court had refused to go into the debate for making singing of the national song mandatory in schools and clarified that it has "kept alive" such a plea only for the national anthem without expressing any views.
The apex court had on November 30 last year ordered cinema halls across the nation to mandatorily play the national anthem before screening of a movie when the audience must stand and show respect.
The apex court, while passing a slew of directions, had also observed that "time has come when citizens must realise they live in a nation and are duty-bound to show respect to the national anthem which is a symbol of constitutional patriotism and inherent national quality".
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