I have been asked more than once on why this Blog has been silent about the interim order passed by the Supreme Court in Shyam Narayan Chouksey v. Union of India [W.P. (Civil) 855/2016, dated 30.11.2016]. Through this order a Division Bench of the Supreme Court passed a slew of directions mandating that the National Anthem be played before feature film presentations in movie theatres, accompanied by a representation of the National Flag. The order has been critiqued on various fronts that are not a concern of what we do on this Blog. But recently, film festival screenings in Kerala saw arrests of persons who allegedly refused to honour the directions by not standing while the National Anthem was being played. News reports were hazy on the offence for which these arrests were made but some cited 188 IPC as the basis. My friend Mr. Rahul Unnikrishnan recently took up the baton and argued here that the arrests lacked legal basis and the Supreme Court had created a new offence. In this post, I further examine these claims. Together with Mr. Unnikrishnan, I argue that non-compliance with the directives of 30.11.2016 cannot be used to initiate criminal cases. One illegality must not be compounded with yet another.
Using Section 188 IPC to Enforce the Order
Section 188 IPC is part of Chapter X, titled Of Contempts of the Lawful Authority of Public Servants. It is an exception to the norm that crime and punishment must be prescribed by the legislature. Thankfully, mere disobedience is not punishable, and the offence is complete only when tis disobedience risks occurrence of certain harmful consequences, or actually causes their realisation. So, there are three requirements for an offence under this provision:
- Existence of an order promulgated by a public servant in her lawful authority.
- Knowingly disobeying such an order;
- Such disobedience causing the prescribed ill-effects.
Can we consider the order passed on 30.11.2016 as one that merits application of Section 188 IPC?
Judicial precedent is clear that orders passed by courts in litigation between parties do not form the subject of Section 188 IPC. For example: violating an injunction order would not amount to an offence under Section 188 IPC but may possibly merit contempt of court proceedings [See, e.g., the decisions in Dalganjan Koeri v. State (AIR 1956 All 630); George Joseph v. State of Kerala (Kerala High Court, Division Bench)].
But there is a catch here. The decisions I refer to above develop on the idea that court orders relate specifically to the parties rather than issues of public convenience and order. Few would contend that an order of the Supreme Court issuing directions for the country, as in the present case, are the same as regular orders even though they are passed in a litigation before the court. Add to this the Supreme Court's power to do complete justice under Article 142 of the Constitution. This makes it arguable to consider an order passed by a Supreme Court Justice - a public servant - as satisfying step 1 of my three-step Section 188 analysis.
The Indian Constitutional Law & Philosophy Blog mooted that Article 142 was never meant to be used this way. While I support that view, I think it is instructive to turn to the intent behind Section 188 IPC to decide how much weight this arguable position can carry. Section 182 of Lord Macaulay's draft of the IPC contained a very similar provision to the current Section 188. Out of all the offences in this Chapter, the Law Commissioners thought it necessary to justify this one. The explanatory notes are insightful:
"The only provision which appears to us to require any further explanation is that which is contained in clause 182. we have, to the best of our ability, framed laws against acts which ought to be repressed at all times and places, or at times and places which it is in our power to define. But there are acts which at one time and place are perfectly innocent, and which at another time or place are proper subjects of punishment; nor is it always possible for the legislator to say at what time or at what place such acts ought to be punishable. ...
What we propose, therefore, is to empower the local authorities to forbid acts which these authorities consider as dangerous to the public tranquility, health, safety or convenience, and to make it an offence in a person to do any thing which that person knows to be so forbidden, and which may endanger the public tranquility, health, safety, or convenience. It will be observed that we do not give the local authorities the power of arbitrarily making any thing an offence; for unless the Court before which the person who disobeys the order is tried shall be of opinion that he has done something tending to endanger the public tranquility, health safety or convenience, he will be liable to no punishment. The effect of the order of the local authority will be merely to deprive the person who knowingly disobeys the order of the plea that he had no bad intentions. He will not be permitted to allege that if he has caused harm, or risk of harm, it was without his knowledge. ...
We see some objections to the way in which we have framed this part of the law; but we are unable to frame it better. On the one hand, it is, as we have shown, absolutely necessary to have some local rules which shall not require the sanction of the legislature. On the other hand, we are sensible that there is the greatest reason to apprehend much petty tyranny and vexation from such rules; and this although the framers of those rules may be very excellent and able men. ...
A public servant of more than ordinary zeal or industry, unless he have very much more than ordinary judgment, is the very man who is likely to harass the people under his care with needless restrictions. We have, therefore, thought it necessary to provide that no person should be punished merely for disobeying a local order, unless it be made to appear that the disobedience has been attended with evil, or risk of evil. [Emphasis added]"
This makes it clear that the power of giving the backing of punishment to ensure compliance with orders was extraordinary and limited to peculiar situations for which legislative sanction does not make sense. This, coupled with the illustrations in the comments which I have omitted here, make it clear that the Law Commissioners were looking at local regulations dealing with processions, disease, etc. Issues that have already been answered through legislative sanction are surely outside the scope of Section 188. Insults to the Indian National Anthem and the National Flag are comprehensively dealt with by the legislature in the Prevention of Insults to National Honour Act, 1971. I would argue, then, that the order dated 30.11.2016 as forming the basis of prosecutions under Section 188 IPC.
Can disobedience cause the necessary harmful effects?
What are the harmful effects that Section 188 IPC speaks of?
- Causing or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed
- Causing or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray
Ordinarily, not obeying the order dated 30.11.2016 will not attract the second situation. Courts have understood the first situation as referring to the obstruction, annoyance or injury caused to the person lawfully employed for enforcing the order in question. Which makes the position as follows: persons knowingly disobeyed the order lawfully promulgated by the Division Bench on 30.11.2016 and by doing so caused obstruction to the police who were lawfully employed for enforcing the order. Whether or not this disobedience caused 'obstruction, injury or annoyance' would become a question of trial and could go either way. This forces me to disagree with Mr. Unnikrishnan, who focused on this point to contend that using Section 188 IPC to justify arrests lacked "legal wisdom".
Offences under the Prevention of Insults to National Honour Act, 1971?
Mr. Unnikrishnan further argues the Supreme Court has created a new offence without any legislation backing it. His contention is slightly misplaced. The history behind Section 188 IPC shows that it was created specifically for making offences without legislative sanction. The basis of his argument is sound though, as we discussed above. This also leads me to the 1971 Act that specifically addressed this issue of criminalising insults to the National Anthem and National Flag. Section 3 it made an offence to intentionally prevent the singing or causing disturbance to an assembly singing the anthem. If by not singing the police are trying to say that persons caused disturbance to the rest of the assembly singing the anthem, it is a very strained reading of the text. If news items are to be believed then this provision is not being used to justify arrests. One can only hope that remains the case.