Service of Summons on Defendants

(By V.MB. Nambisan, Advocate, Taliparamba)

1.  Recently, in Arundas v. Priji,reported in 2017 (4) KLT 1060, Our Hon’ble High Court (Division Bench) held that “service of notice on a defendant can be done by service on an adult member of his family who is residing with him only if it is specifically so ordered by the Court (para.20) under Order V Rule 15 of the Civil Procedure Code (for short CPC). The observations that “the unexpendable imperative for courts to ensure valid and proper service of summons and notices to defendants in a suit and other proceedings can never be overstated” and that “proper service of summons is a fundamental rule of procedure” are all well said. As such, the captioned subject invites a detailed discussion.

2.  Section 27 of C.P.C. says that “summons shall be served in the prescribed manner”. The manner is prescribed in Order V of C.P.C. and in Civil Rules of Practice (for short CRP) Rules 75 to 80.

Order V Rules 11 and 12 of CPC read together spell out that summons shall be served on each defendant in person.

Order Rule 12 (second part) read with Rules 13 and 14 deal with service of summons on Agents of defendants.

Order V Rule 15 deals with service of summons on an adult member of defendant’s family. Rules 16 to 19 deal with the procedure to be followed in the matter of service of summons on Agents, adult members etc. C.R.P. Rules 75 to 80 set out the procedure to be followed by the Serving Officer to effectuate service of process.

4. There is an all-important directive to the court in Order V Rule 19 that when summons is effectuated “the Court shall declare that summons has been duly served. This is indispensable because Order IX Rule 6 says that “when it is proved that summons was duly served on defendant, if he is absent on the date of hearing, he shall be set ex parte and if not duly served a second summons shall be issued.

The above directive is common to service of summons under Order V Rules 11 to 18.

5. A close study of the above provisions will convince us that Order V Rules11 to 19 and C.R.P. Rules 75 to 80 have to be considered together. One rule cannot be chiselled out and commented upon separately.

6. Now let us find out whether service of summons on an adult member of the family of defendant who resides with him can be served only on a specific order of the Court to that effect.

i) Order V Rule 16 directs that the Serving Officer shall get acknowledgment for service of the summons from the defendant or his agent or other person. The “other person” referred to herein can mean none other than the “adult member of defendant’s family” referred to in Rule15. Suppose the adult member of defendant’s family concedes to accept summons giving acknowledgment for it, can not the Serving Officer serve it on him? Or, should he submit a return to the court stating the above facts and wait for a specific order to serve it on an adult member which will be done by the court only at the next hearing date ?

ii) In Rule 17 we again find “such other person as aforesaid”. Who else can it be except the “adult family member”? It continues to say that the Serving Officer shall affix a copy of the summons on the outer door of the house etc. Again, should the Serving Officer go back and get an order from Court for affixture ? Order V Rule 19 says that the court may examine the Serving Officer on oath to ascertain the truthfulness of serving the Summons. What more is required ?

iii) Rule 18 calls upon the Serving Officer to submit a detailed report on serving the process under Rule 16 which should include the serving time manner, ID witness etc. C.R.P. Rule 77 to 80 also call upon the Serving Officer if he has affixed the summons on the outer door etc., to submit his report verified by affidavit giving details of serving summons. If summons could be served on an adult member only after the court gives a finding for it, why should the Serving Officer be called upon to submit such a report to the court ?

7. The process server is a responsible Officer deputed by the Court. He is not a peon nor a messenger. He is a Public Officer. See C.P.C., Section 2(17)(d). He is authorized by the court to execute judicial process. When he serves the summons on an adult member of defendant’s, family taking acknowledgement for it as prescribed in Order V Rule 16, he performs his duty. It has to be presumed that he has regularly performed it, vide Indian Evidence Act, S.114(e).

Is not the above analytical discussion decisive to conclude that no specific finding of the Court is required for the Serving Officer to serve the summons on an adult member of the family of the defendant, who is residing with him.

What Information of A Co-operative Society can be Accessed by A Public Authority under the Right to Information Act? The Guiding Principles

(By R. Muralidharan, Puducherry Civil Service Officer (Retd.), Director, Catalyst [The Training People])

The question whether co-operative societies answer the definition of ‘public authority’ under Section 2(h) of the Right to Information Act, 2005 was engaging the attention of various State and Central Information Commissions and the High Courts for quite some time and divergent decisions were delivered by the Commissions and the High Courts.  Ultimately, the Supreme Court, from a Full Bench decision emanated from the Kerala High Court, settled the jurisdictional limit of the Right to Information Act vis-a-vis Co-operative Societies in Thalappalam Service Co-operative Bank Ltd., & Ors. v. State of Kerala & Ors.(2013 (4) KLT 232 (SC): 2013 (12) SCALE 527: 2013 (6) CTC 98: (2013) 7 MLJ 407: 2014-1-LW. 273 : RTIR IV (2013) 75 : (2013) 16 SCC 92 with the following propositions:

(i)  To answer the definition of ‘public authority’ under Section 2(h) of the R.T.I. Act it is to be established whether a co-operative society is a body owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate Government;

(ii)  A Co-operative Society is not a body owned by the appropriate Government;

(iii)  The expression ‘controlled’ must be a control of a substantial nature and not merely supervisory or regulatory.  Powers exercised by the Registrar and others under the Co-operative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled;  

(iv)   ‘Substantially financed’ indicate that the degree of financing must be actual, existing, positive and real, it should be shown that but for the funding the society would struggle to exist;

(v)   Providing subsidies, exemption, privileges etc., will not tantamount to substantial financing.  Similarly schemes meant for betterment of co-operatives also will not be construed as substantial financing;

(vi)  Only if the societies are substantially financed, it will fall within the sweep of ‘public authorities’ and answerable to the R.T.I. Act;

(vii)   A body (in this case a society) is free to establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government;

(viii)  If the information is not statutorily accessible by a public authority those information will not be under the ‘control of the public authority’;

(ix)  A citizen can have access to information of a co-operative society through the Registrar, who is a pubic authority;

(x)  The Registrar cannot access all the information from a co-operative society, but only those information which it is legally obliged to pass on to the Registrar and also only those information to which the Registrar can have access in accordance with law.

This article focuses on to what extent the applicant can have information from a co-operative society through a public authority who can access it under any other law as had been defined under Section 2 (f) of the Act.  The claim of the applicant seems that though the co-operative society is not a public authority under the Act, he can entrée such information he intends to have through the public authority, namely, the Registrar of Co-operative Societies, who is a public authority under Section 2 (h) of the Act.  Is there any limit for such access to information or sky is the limit?

Supreme Court sets the tone

The answer to the above question may be found from the judgment of the Apex Court in Thalappalam Service Co-operative Bank Ltd. (supra). The Court observed that the Registrar functioning under the Co-operative Societies Act is a public authority.  As a public authority the Registrar has been conferred with lot of statutory powers.  He is duty bound to comply with the obligations under the R.T.I. Act.  Information which he is expected to provide is the information enumerated in Section 2(f), subject to the limitations provided under Section 8.  The Registrar can also, to the extent law permits, gather information from a society, on which he has supervisory or administrative control.  He is not obliged to disclose those information if those information fall under Section 8.  Only those information which a Registrar can have access under the Co-operative Societies Act from a society could be said to be the information which is ‘held’ or ‘under the control of the public authority’. 

The Registrar is not bound to furnish the information to the applicant if the information sought for falls under the exempted category, even if the Registrar has got that information.  He is bound to provide the information only on his satisfaction that large public interest warrants such a disclosure that too for reasons to be recorded in writing.

In Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors. (2011 (3) KLT SN 117 (C.No.120): (2011 (2) ID 101: 2011-4-LW-289: 2011 (7) MLJ 1237: (2011) 8 SCC 497: RTIR III (2011) 242), the Supreme Court  clarified that if a public authority has any information in the form of data or analyzed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant.  Of course, this decision is not based on interpretation of the Co-operative Societies Act.

Decisions of the High Courts

Echoing on the law enunciated by the Supreme Court, various High Courts have rendered the following decisions on this subject.

(i) The Division Bench of Delhi High Court in Eliamma Sebastian v. Ministry of Home Affairs & Ors. (2016 (4) KLT 2211 (Del.) = RTIR II (2016) 101) held that the information which is in the possession of the co-operative society is accessible to its members and those interested, in Section 139 of the Delhi Co-operative Societies Act. The absolute nature of this obligation to furnish information to those entitled to apply and receive is reinforced by the consequences which are spelt out in Section 139(2). However, information which the society may not possess, but pertaining to it, in the form of records with the Registrar of Co-operative Societies, have to be provided by the latter, under the R.T.I. Act, as there is no doubt that such official, who discharges statutory functions, is a public authority. However, the grounds of exemption spelt out under the R.T.I. Act too would be attracted, wherever applicable. The applications of the petitioner shall be considered by the Registrar, to the extent the information is available with his office. In regard to the information not available, the Registrar shall indicate clearly what material does not exist, in an order. It is then open to the petitioner to seek such information under Section 139 of the Delhi Co-operative Societies Act.

(ii) In case before Bombay High Court in Sainik Co-operative House Building Society Ltd. v. Bismark Facho & Ors.(AIR 2015 Bom.153), the information in the form of question Nos. 4 and 5 (minutes of the society) was not in possession of the Registrar of Co-operative Societies but he had called for the said information from the petitioner society and the petitioner society had refused to furnish the said information. There was no finding by any authority that the information sought for by the first respondent by way of question Nos. 4 and 5 could be accessed by the Registrar under the Maharashtra Co-operative Societies Act or any other law for the time being in force at the relevant time.

The impugned order to the effect that the petitioner society is a public authority and has to give the information requested by the citizens under the Act, unless it is exempted under any of the provisions of the same Act and therefore the second respondent shall give information withheld by the petitioner was quashed and set aside.

(iii) In Puthiyatheru Urban Co-operative Society Ltd., v. Joint Registrar of Co-operative Societies (General), (2017 (2) KLT 656 : AIR 2017 Ker 166 : RTIR III (2017) 167), the Kerala High Court observed that in the light of the decision of the Apex Court in Thalappalam Service Co-operative Bank Limited v. State of Kerala [cited above] there cannot be any doubt that the petitioner would not fall within the definition of ‘public authority’ under the RTI Act. Co-operative societies registered under the Societies Act are, therefore, only private bodies as far as the R.T.I. Act is concerned. But, the Joint Registrar and Assistant Registrar would certainly fall within the definition of ‘public authority’ under the R.T.I. Act and they are, therefore, obliged to furnish information under the R.T.I. Act. The information which the Joint Registrar and Assistant Registrar are obliged to furnish under the RTI Act are only information which would fall within the definition of ‘information’ as contained in Section 2(f) of the R.T.I. Act.

It can be inferred that the scheme of the R.T.I. Act is that whenever applications are preferred for information before the public authorities in relation to private bodies, it is obligatory for the public authorities concerned to consider whether the information sought are information which they are empowered to access under any law. If the information sought is not information which the public authorities are empowered to access under any law in respect of a private body, the public authorities have no obligation under the R.T.I. Act to furnish such information. In this context, it is to be clarified that if information sought from a public authority in relation to a private body are information which the public authority is empowered to access under any law, such information can certainly be gathered and furnished to the applicant, if the same is not available on the record of the public authority.

(iv) The question that calls for adjudication before the Kerala High Court in Thrissur District Co-operative Bank, Thrissur v. State Information Commission, Thiruvananthapuram & Anr. (2017 (1) KLT 2101 = AIR 2017 Ker.120) is do the co-operative societies fall within the jurisdictional limits of the Right to Information Act directly or indirectly, that is, at least, through the process of an official gathering information and then providing it to the applicants?

The Co-operative Societies, not supported by the Government, assert that they are not ‘public authorities’ and, so, they are beyond the jurisdictional limits of the Right to Information Act; certain third parties, unconnected to the societies, seek information insisting that the societies are bound by the Act; the Information Commission endorses the third-party view. The issue, broadly having been decided by the Supreme Court in Thalappalam, the question is whether the co-operative societies are liable to provide information under either the Right to Information Act or the Kerala Co-operative Societies Act.

The information he is expected to provide is the information enumerated in Section 2(f) of the R.T.I. Act; it is, however, subject to the limitations imposed by Section 8 of the Act. The Registrar can also, to the extent law permits, gather information from a society, on which he has supervisory or administrative control under the Co-operative Societies Act. Only the information a Registrar of Co-operative Societies can legitimately have access to from a society under the Co-operative Societies Act could be said to be the information ‘held’ by or is under the ‘control’ of public authorities. Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information from a co-operative bank under law. In a given situation, the society will have to part with that information. But the demand should have statutory backing.

If there is no bona fide public interest in a person’s seeking information, disclosing that information will unwarrantedly invade the privacy of the person whose information is sought. In that eventuality, the public authority, here the Registrar, can refuse the person’s request, even withhold the information. Further, if the authority finds that information sought can be provided in the larger public interest, then the officer should record his reasons in writing before providing the information, because the person from whom information is sought also has a right to privacy guaranteed under Article 21 of the Constitution.

                                                                                 Note: Underlined to add emphasis

In fine

From an analysis of the aforesaid judgments and the principles evolved therein it is clear as crystal that Co-operative Societies, if not substantially financed, do not answer the definition of public authority under the R.T.I. Act.  When an applicant seeks information about such societies and makes an application to the public authority, the Registrar cannot access all the information from a co-operative society, but only those information which the society is legally obliged to pass on to the Registrar and also only those information to which the Registrar can have access in accordance with law. If information sought for is accessible under any law, such information can certainly be gathered and furnished to the applicant, if the same is not available on the record of the public authority. It is pertinent to note that if the society is substantially financed by the appropriate Government it is a public authority and is obliged to provide the information under the provisions of the Act.

A Look On The Ruling In 2017 (2) KLT 645

(By P. Devasahayam, Advocate, Vanchivoor, Thiruvananthapuram)

This decision (Abdul Kareem v. Muhammed Shafi) was rendered by Honourable Mr.Justice K.Harilal and Honourable Mr.Justice Raja Vijayaraghavan V. It is a case where the Landlord filed petition before the BRC Court for eviction of a tenant under S.11(2)(b) and 11(3) of the BRC Act 1965. Pending the matter Land lord filed two applications, one was for amendment of the petition under Order 6 Rule 17 C.P.C. along with S.23(1)(j) of the BRC Act seeking for incorporating S.11(4)(iii) of the Act with the allegation that the tenant had acquired possession of another building. The other application was for appointment of a commissioner. The Rent Control Court dismissed these applications. In an O.P.(RC) No.3669 of 2013 filed by the Landlord their Lordships concurred with the decision of the Rent Control Court regarding application for amendment and allowed the other application for appointment of commissioner.

I wish to discuss the decision on amendment. It was held by the court that in view of the rigour under S.23(1)(j) of the Act, Order VI Rule 17 C.P.C. cannot be allowed. It was also held that S.23(1)(j) of the Act is confined to the amendment to cure “defect or error” in the Rent Control Petition only and the cause of action for eviction on the new ground arose pending the matter petitioner was disentitled for amendment.

It was so discussed in para.12 of the decision that S.23(1)(j) is confined to cure “defect or error” in the Rent Control Petition only. According to me the literal and purposive interpretation of the Section is not only the application but the entire proceedings including application. It is the principle of law that subsequent event can be considered by the court to shorten litigation and cause of action is applicable only to suits and not application like applications before BRC Court. As per the opinion of his Lordship Justice Mr.V.R.Krishna Iyer the number of acceptance of subsequent event is legion.

Let us consider the earlier decisions on this matter in Abraham v. Associated Engineering Corporation (1984 KLT 985). It was held that Rent Control Court has power for amendment under S.23(1)(j) or inherent power or residuary powers of the Rent Controller as a Court. In Seshambal v. Chelur Corporation (2010 (1) KLT 834) it was so held by the Supreme Court at page 839 and 840, subsequent event can be considered by amendment if there is hearing upon the impact of the rights of the parties. In Mohan v. Jayaprakash (2013 (2) KLT 260) it was a case for amendment by adding a additional party to the proceedings pending the matter. After analyzing the case law it was held that S.22 or 23 of the Act does not mean that the Rent Control Court does not lacks inherent power to do substantial justice in adding parties and amending applications. In Krishna Iyer v. Abdul Rasheed (2015 (1) KLT 511) it was held that S.23 of the Act does not bar the Rent Control Court to exercise any other power which the Civil Court exercises under C.P.C. provided it does not offend the Act and Rules.

It can be seen that S.23(1)(j) of the BRC Act has been interpreted in a hyper technical way in the present case. The basic principles of judicial system under jurisprudence is for rendering substantial justice. This subsequential justice can be done through the channels of truth. There are series of procedures adopted in an enactment to find out truth. The procedures are interrogatories, production of documents, examination of parties etc. The Authority on this matter is cited in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (2012 (2) KLT SN 46 (C.No.47) SC = AIR 2012 SC 1727). Truth must be the foundation of Justice. Judges should not sit as mere umpire during trial, but play active role to find out, truth. This value of truth for administration of justice has been discussed at paras 31 to 49 of this judgment. This matter has been re­iterated in another judgment in Shanmugam v. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (AIR 2012 SC 2010). The journey of a Judge is to discover the truth. Every trial is a voyage of discovery in which truth is the quest. Paras 24 to 29 deal with truth including English, American and Israel decisions.

S.23 of the Act deals with procedure including amendment of defect or error in orders or proceedings. In this case the tenant was alleged to have obtained possession of another building entiling the landlord for eviction of the tenanted building. The word proceedings mentioned in this section has not been defined.  Applying the principle in Hydon’s case remedy is to be advanced to find out the truth for the administration of justice. As per the ruling in 1988 KLJ 55 interpretation is possible one that is reasonable on common sense.

We Lawyers are arguing our cases with the support of authorities. I have got a doubt as to the interpretation of S.23(1)(j) of the Act in view of this Ruling of their Lordships as to whether it is a pragmatic approach or pedantic approach with the goal to find out the truth for the ends of justice.

Using Sword, Sans Notification, No Offence?

(By Abdul Khader Kunju S., Asst. Public Prosecutor, Cherthala)

The background of the issue

The conflicting decisions of two co-ordinate Benches of the Hon’ble High Court of Kerala creating doubts regarding the proper application of the Arms Act, 1959 (the Act) in Kerala. First one is that held in Azzi v. State of Kerala(2013 (4) KLT 439) and the other one is in Jinu v. State of Kerala(2017 (4) KLT 895). Both by Single Benches. In the former one the Court held as follows:-

“I am of the opinion that though the accused has not inflicted injuries with arm on any person, the act of threatening or intimidating or alarming another person by showing any arm or brandishing a knife or sword or any arm of such description and design with an intend to cause fear of death in the mind of another person or alarming him would come under the expression ‘use’ of arm, constituting the offence under Section 5(1) r/w. Section 27 of the Arms Act. Arms, particularly, in the description or design of knife or sword may have several usages. But, when the accused threatened and caused fear of death in the mind of passengers by the act of brandishing the sword in his hand and shouting that he would stab each of them to death it can be held that he used the sword in violation of Section 5 of the Arms Act and thereby committed the offence there under.”

In the latter case the Court held that:-

“Thus, on reading of Section 5 along with Section 4 of the Arms Act, it can be seen that Section 5 will not be applicable in cases of arms coming under the purview of Section 4 of the Arms Act for which licence is not required. As long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie.”

In the first case there was no contention that offence under Section 27(1) of the Act would not form if the arms other than a firearm or ammunition is used without licence in a non-notified area, but in the second case the main dispute was that unless the place where the use of arm was held is a notified area there will be no such offence. In both the cases similar acts were done by the accused and both the places are somewhere in and around Kochi. And there is no dispute that the places are not notified areas.

Though apparently the considerations were not exactly the same, both the decisions run around the question whether licence is required to use the arms other than a firearm or ammunition in a non-notified area.

Objects of the Arms Act, 1959

The Arms Act, 1959 came into being on 1.10.1962 by repealing the Indian Arms Act, 1878. The Arms Rules 1962 also came into effect. The Act mainly focuses on regulating the possession, availability and the use of firearms, ammunition and arms other than firearms and ammunition. As per the 1878 Act almost all the types of weapons were included in the definition of arms. As expressed in the object and reasons of the Act, 1959, the 1878 Act was intended to disarm the entire nation, but it was found that, in certain situations, it is necessary to permit the law abiding citizens to have in possession and use firearms. Hence the Act came into effect. The object and reasons of the present Act intended to exclude knives, spears, bows and arrows etc., from the definition.  

Possession not prohibited of certain arms

The possession and acquisition of firearms and ammunition are regulated by Section 3of the Act. According to which no one can have the possession of such arms without licence. Primarily the possession of arms other than firearms and ammunition require no licence.  But in case of special situation prevailing in any area, if the Central Government is of opinion that arms other than firearms are also be regulated, that Government can issue a notification under Section 4 of the Act. Thereupon acquisition, possession and carrying of arms of such class or description also are offences, unless the person, who acquires or possesses holds licence. Section 25 (1-B) (b) penalizes the possession of arms of such description in the notified area.       

Let’s, now go though the ambit of notification under Section 4 of the Act, first.

“4. Licence for acquisition and possession of arms of specified description in certain cases - If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.”

Rule 4 of the Arms Rules, 2016, explicitly provides that for the possession etc. of arms other than firearms and ammunition no licence is required in a non-notified area, which says as follows:-

“4. Licence for arms other than firearms and applicability of Section 4.─
(1) Unless the Central or the State Government by notification in the Official Gazette so directs, no licence shall be required for the manufacture, sale, possession for sale or test, of arms of Category V in Schedule I except in the areas notified under Section 4.

(2) In any area specified in the notification issued by the Central Government under Section 4 of the Act, licence for acquisition, possession or carrying in that area of arms of such class or description as may be specified in that notification may also be granted or renewed as provided in Schedule II, subject to such conditions as may be specified in these rules, that Schedule and in the licence.”

Notification in the State of Kerala

No notification is issued under Section 4 of the Arms Act 1959 so far in Kerala, whereas the notification issued by the then Madras Government under Section 17 of the Act of 1878 vide Notification No.222 in respect of the then Malabar District is still in effect in areas covered under the then Malabar District. By explaining the provisions of Section 46 of the Act of 1959 and Section 24 of the General Clauses Act, the High Court of Kerala in Jithu v. The State of Kerala(2014 (3) KLT 243) has settled this position.

Useof arms of every kind in any area is offence

What is obvious from Section 4 of the Act is that, if the Central Government makes a notification in terms of that section the acquisition, possession or carrying of arms other than firearms will also be regulated. Notification has nothing to do with the use of such arms. Use of arms is regulated by Section 27 r/w Section 5 of the Act. The language in Section 4 is clearly comprehensible.

Decision in Jinu’s case

Juxtaposing Section 4 with Section 5 of the Act, the Court in Jinu’scase (supra) observed that in order to attract Section 5 of the Act arms other than fire arms it should be “such class or description as may be prescribed” and therefore, held that as long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie. In order to understand the nuances of the problem let’s go through the Section 5 of the Act. Punishment under Section 27 of the Act is provided for the contravention of what is stipulated in Section 5 thereof.

“5. “Licence for manufacture, sale, etc., of arms and ammunition —(1) No person shall—

(a) use, manufacture, sell, transfer, convert, repair, test or prove, or

(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof,

any firearm or any other arms of such class or description as may be prescribedor any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this behalf a licence issued in accordance with the provisions of this Act and the rules made there under:

****

****”                                                                            (emphasis added)

And the relevant part of Section 27 reads as follows:-

“27. Punishment for possessing arms, etc.,—

  (1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

****

****”

Sword, an arm of prescribed description

One and only hypothesis deriving out of the above provisions is that the use, among other things,of arms of such class or description as may be prescribed, in any area, is offence. Next is to see whether the ‘sword’ is an arm of such class or description as ‘prescribed’. The word “prescribed” is defined under Section 2(g) of the Act to mean as prescribed by rules made under this Act. A schedule is attached to the Arms Rules, 2016 (previously the Arms Rules, 1962) made under the Act.

This aspect is more specifically expressed under Rule 2 of the 2016 Rules, which is as follows:-

“2. Classification of arms and ammunition.─ For the purposes of the Act and these rules, arms and ammunition shall be of the categories specified in columns (2) and (3) respectively of Schedule I and references to any category of arms or ammunition in these rules shall be construed accordingly.”

Sword is one among the categories specified therein. Hence it can be seen that sword is a prescribed arm. In the light of the above, it is apparent that prescription of certain class or description of any arm in addition to the inclusion of such arm in the Schedule is not necessary. Sword being an item included in the Schedule its use is an offence under Section 27(1) of the Act, even in a non-notified area.

Jinu’sCase, a wrong proposition

 Since the sword, being a prescribed arm within the meaning of Section 5 of the Act, its use is an offence under section 27(1) of the Act, irrespective of the fact whether the area is notified or not. In Azzi’scase (supra) it has held that brandishing a sword is using it.  Hence, it seems that, the reasoning in Jinu’scase holds no water and the same needs to be corrected.  

Conclusion

As the law is uncertain at times it is the duty of the Judges to expound it. Respecting the function of Judges, Lord Denning, in the preface to his book ‘The Changing Law’, says:-

“The truth is that the law is often uncertain and it is continually being changed, or perhaps I should say developed, by the Judges. In theory the Judges do not make law. They only expound it. But as no one knows what the law is until the Judges expound it, it follows what they make it.”   

The controversies on the application of law of arms have been the concern of law enforcing agencies since long. As the decisions referred to supra reflect incongruous propositions the lower courts and law enforcing agencies would be put to untold uncertainty. To say less, the judgment in Jinu’scase (supra) becomes another decision to be corrected by the appropriate forum of the Court.

The Fiat on National Anthem – Fundamental Rights Enforced or Abridged?

     (By B. Premnath, Advocate, High Court of Kerala, Ernakulam)

“And we must remember that there is no higher Court to correct our errors, and that we wear the mantle of infallibility only because our decisions are final. That we sit at the apex of the judicial administration and our word, by constitutional mandate, is the law of the land can induce an unusual sense of power. It is a feeling we must guard against by constantly reminding ourselves that every decision must be guided by reason and by judicial principles” (Justice R.S.Pathak in ((1984) 3 SCC 161).

Supreme Court, the sentinel of the Constitution of India, in Shyam Narayan Chouksey v. Union  of India(W.P.(Civil) No.855/2016) commanded inter alia to play the National Anthem before the film show in cinema theatres and that the audience should stand up during the rendering. The directions were passed in a Writ Petition under Article 32 of the Constitution of India which can be invoked only to enforce the fundamental rights and nothing else.  The directions invade our fundamental rights guaranteed under the Constitution of India.

Supreme Court issued the following directions:

(a) “There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.

(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots is National identity, National integrity and Constitutional patriotism.

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f)  When the National Anthem shall be played in the Cinema Halls, it shall be with the National flag on the screen.

(g) The abridge version of the National Anthem made by one for whatever reason shall not be played or displayed”.

Later, another order was passed with regard to the physically challenged persons to the effect that “if a physically challenged person or physically  handicapped persons goes to the Cinema hall to watch a film, he need not stand up, if he is incapable to stand, but show such conduct which is commensurate with respect for the National Anthem.” Disability was as defined under Sections 2(i) and 2(t) of the Persons with Disabilities(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.”

Union Government brought out two circulars dated 6.12.2016 and 21.12.2016 prescribing the guidelines for playing the National Anthem in tune with the order of the Supreme Court. The circular on 21.12.2016 said: “The persons with locomotor disabilities and other wheel chair users having affected lower limbs shall position himself/herself to the extent of maximum attentiveness and alertness with or without the help of appropriate aids and appliances. For example a wheel chair bound person with disability shall make the wheel chair static, position himself/herself maintaining the maximum possible alertness physically”. 

The order of the Supreme Court further shows that the petitioner has averred that sometimes National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law, though the said circumstances are not detailed.

Many questions linger as to the legality of the directions of the Supreme Court.  What is the fundamental right of the petitioner to be enforced that the other people should stand up when the national anthem is being played or that the National Anthem should be played before the screening of every film? The petitioner had no legal right to seek for the issue of writ of mandamus. There was therefore no legal remedy for him. As Blackstone opined: “It is a general and indisputable rule that when there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded”.

The orders of the Court and the circulars that followed offend the fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(g) of the Constitution of India. The direction that physically disabled persons and persons confined to wheel chairs should show maximum alertness, would do violence to them. It violates their fundamental right under Article 19(1)(a)
and their right to privacy which has now been declared as a fundamental right by the Supreme Court in Justice K.S.Puttaswamy (Retd.) v. Union of India (2017 (4) KLT 1 (SC)). The circulars issued are not law at all.  In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986 KLT 1037 (SC)). It was held : “The law is now well settled that any law which may be made under clause (2) to (6) of Article 19 to regulate the exercise of the right to the freedoms guaranteed by Article 19(1)(a) to (e) and (g) must be ‘a law’ having statutory force and not a mere executive or departmental instruction”.

Bijoe Emmanuel & Ors. v. State of Kerala & Ors.(supra) was a case where three children were expelled from the school for not singing the National Anthem. The children, who were faithful of Jehovah’s witnesses did not sing the  National Anthem as they believed that it is against the tenets of their religious faith.  Supreme Court emphatically held that their expulsion from the school violate their fundamental rights under Article 19(1)(a) and Article 25 of the Constitution of India. 

Article 19(2) exhorts that “Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub- clause in the interest of the Sovereignty and Integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to Contempt of Court, defamation or incitement to an offence”. Thus the fundamental right of speech and expression guaranteed by Article 19(1) (a) is qualified. That has to go through the teeth of Article 19(2). At any stretch, being seated in reverence of the National Anthem does not offend Article 19(2) at all. 

In Shyam Narayan Chouksey v. Union of India(AIR 2003 M.P. 233), a Writ Petition was filed complaining that the National Anthem was dramatised and commercially exploited in the film “Kabhi Khushi Kabhi Gum”. In a scene in the film, a boy starts to sing the Anthem and the audience do not stand up immediately. The audience in the film are taken by surprise. Some of the audience stand up after three lines, some after four lines and some after five lines. The boy forgets the lines and says “sorry.” His mother later fills up the words. While the Court holds that freedom of speech and expression has gained immense significance and its utility by no stretch of imagination can never be marginalised and its importance be reduced, it is also held that dramatisation and commercial exploitation for the benefit of the producer cannot be permitted. Then the Court issued directions inter aliato delete the scene from the film and injuncts the cinema halls and the theatre owners from showing the film with that scene. Later the Supreme Court permitted exhibition of that film without deleting any scenes.

It may be seen that the production and exhibition of films are part of the fundamental right under Article 19(1)(g) of the Constitution which can be curtailed only by virtue of Article 19(6), by imposing reasonable restrictions. The depiction of a scene in a film is part of freedom of expression of its writer and those who projects it on to the silver screen. The freedom of speech and expression can be curtailed only in the situations covered by Article 19(2). None of such contingencies were present for issuing such directions in that case. And for issuing directions (a) and (b) in the present case, no such situations are referred to.

S.Rangarajan etc. v. P.Jagjivan Ram((1989) 2 SCC 574) was a case where S. Rangarajan, produced a Tamil film “Ore Oru Gramathile” and applied for certificate for exhibition of the film. The ‘U’ Certificate granted was revoked by the Madras High Court. It was appealed. Supreme Court held: “The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man”. It was further held: “We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression”..........

“The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience or expediency. Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself”.

The directions issued regarding playing the National Anthem in cinema theatres before the start of the film, violates the fundamental right under Article 19(1)(g). Of course the said right is subject to reasonable restrictions. Article 19(6) permits the State from making any law imposing, in the interests of the general public reasonable restrictions on the exercise of the right conferred by Article 19(1)(g). It also permits the State to make any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.  The orders of the Supreme Court and the circulars of the Union Government cannot be termed as “law” under Article 19(6) and are not reasonable restrictions.

The Cinematograph Act, 1952 and the allied rules are made to provide for the certification of cinematograph films for exhibition and for regulating exhibitions for means of cinematographs and for licensing the conduct of the cinema theatres. The guidelines for certification of films for public exhibition shows that there can be no scenes where the sovereignty and integrity of India is called in question, the security of the State is jeopardised or endangered, public order is endangered and further that the national symbols and emblems are not shown except in accordance with the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 (Act 12 of 1950). Conditions are also stipulated under the rules for granting licence for the building in which films to be exhibited. Then if a person satisfies all the said conditions and conduct a cinema theatre accordingly and if a film is certified to be fit for public exhibition, the order now issued by the Supreme Court and the circulars issued by the Central Government which are not law, impose unreasonable restrictions on his trade which cannot be justified under Article 19(1)(g) of the Constitution of India. Even if an amendment is carried out to the Cinematograph Act, it can only impose regulations which has a reasonable relation to the object sought to be achieved by it. There has to be a nexus with the object to be achieved. It cannot be disproportionate. Any law passed restricting the fundamental rights guaranteed under Artcile 19(1)(g) cannot be one jeopardising the interest of the general public. It cannot violate any other fundamental right also. 

It is not a case where there is a vacuum; there is an enactment covering the subject. The Statement of Objects and Reasons to the Prevention of Insults to National Honour Act,
1971 (Act 69 of 1971) may be referred to: “Cases involving deliberate disrespect to the National Flag, the National Anthem and the Constitution have come to the notice in the recent past. Some of these incidents were discussed in both the Houses and Parliament and members expressed great anxiety about the disrespect shown to the national symbols. Government were urged to prevent the recurrence of such incidents. Disrespect to the National Flag and the Constitution or the National Anthem is not punishable under the existing law. Public acts of insults to these symbols of sovereignty and the integrity of the nation must be prevented. Hence the Bill. The scope of the law is restricted to overt acts of insult to and attack on, the national symbols by burning, trampling, defiling or mutilating in public.It is not intended to prohibit honest and bona fidecriticism of the symbols, and express provisions to this effect have been made in the Bill”.                                                    (emphasis supplied)

The “Prevention of Insults to National Honour Act, 1971” makes it an offence under Section 3 where anyone intentionally prevents the singing of National Anthem or causes any disturbance to any assembly engaged in such singing will be punished with imprisonment up to three years or with fine or with both. As can be seen from the object and reasons, the scope of the Act is restricted. Not standing up while the National Anthem is being sung is not made an offence; it cannot be, in the teeth of Article 19(1)(a) and 19(2).

The Government of India, Ministry of Home Affairs issued orders relating to the National Anthem of India. Just like the Flag Code, it is not a statute; thereby the Fundamental Right under Article 19(1)(a) is not regulated. But the orders have to be followed to the extent it provides for preservation of dignity and respect for the National Anthem. In that way direction (c) in the present order of the Court is correct, but it militates against Article 32. Union of India v. Naveen Jindal & Anr.((2004) 2 SCC 510) was a case where a citizen was flying National Flag at the office premises of his factory. He was not allowed to do so by the government officials on the ground that the same is impermissible under the Flag Code of India. Supreme Court held: “(i) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1)(a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation; (ii) The fundamental right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under Clause 2 of Article 19 of the Constitution of India; (iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention  of Insults to National Honour Act, 1971 regulate the use of the National Flag; (iv) Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution of India for the purpose of Clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying the National Flag. However, the Flag Code to the extent it provides for preserving respect and dignity of the National Flag, the same deserves to be followed. (v) For the purpose of interpretation of the constitutional scheme and for the purpose of maintaining a balance between the fundamental/legal rights of a citizen vis-a-vis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India can be taken recourse to”.

Though the orders relating to National Anthem  gives  a  guideline  as  to  the  occasions  in  which  the  full  version/short version shall be played, that relates to Civil/Military investitures and the State functions where the audience shall stand to attention. The orders relating to the playing of Anthem issued by Union Government state that the short version of the Anthem shall be played when drinking toasts in Messes and the abridged version is detailed therein.  It is stated that the Government can issue special orders listing the occasions which it has to be sung/played but again it should relate to the State functions. Clause V in general states that: “(1) Whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a news-reel or documentary the Anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the Anthem.  (2) As in the case of the flying of the National Flag, it has been left to the good sense of the people not to indulge in indiscriminate singing or playing of the Anthem.”                    (emphasis supplied)

The order of the Supreme Court to play the National Anthem in Cinema theatres before the film, with the display of National Fag on the screen, making the audience stand up, impedes the very essence of liberty of the life of we, the people.

Then, can a picture of the National Flag be shown in cinema theatres during the playing of the National anthem? The display of the National Flag is governed by the “Prevention of Insults to National Honour Act”, 1971 where the display of the Flag in certain occasions and in certain manner is made an offence. The Flag Code of India brings together the conventions, practices and instructions for the guidance for the display of the Flag. Clause 2.2 states that a member of public, a private organization or an educational institution may hoist/display the National Flag on all days and occasions, ceremonial or otherwise consistent with the dignity and honour of the National Flag. Clause 2.2(i) states that whenever the National Flag is displayed, it should occupy the position of honour and should be distinctly placed. It is inconceivable that the cinema theatre hall with closed doors is a place and a position of honour for the flag.

The orders now passed cannot be issued banking on the fundamental duties enshrined under Article 51-A of the Constitution of India, as Article 51-A cannot be enforced through the Court in view of Article 37, and is only a guide, an aid to interpretation of constitutional and legal issues. It is by virtue of Article 37, applying the principles in Part IV of the Constitution, that “Prevention of Insults to National Honour Act”, 1971 was enacted by the State. Therefore, when the Parliament sought to restrict its scope to overt acts of insult to and attack on, the national symbols by burning, trampling, defiling or mutilating in public, Court cannot add anything further. Even if there is any lacuna or defect in an Act, it cannot be cured under Article 32 ((2008) 5 SCC 511). Fundamental duties under Chapter IV of the Constitution are only reminders to the citizens who enjoy their fundamental rights.  Fundamental duties cannot have primacy over fundamental rights and vice versa.  Constitutional enactment of fundamental duties must be used by Courts as a tool on State action drifting away from constitutional values ((2002) 1 SCC 428). Nothing is discernible from the Order now passed as to the values which were the collective duty of the citizens of this country that drifted away, that prompted the Supreme Court to pass the present directions. At any rate, it could not have been passed in a petition under Article 32; meant to enforce the fundamental rights only.  Even the wide power of the High Courts under Article 226 is not available to the Supreme Court under Article 32. ((2010) 3 SCC 571).

Can the Supreme Court issue such directions under Article 142(1) of the Constitution? A Constitution Bench in Prem Chand  Garg & Anr. v. Excise Commissioner, U.P.& Ors. (AIR 1963 SC 996)held that “An order which the Court can make under Article 142 in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.  Consequently it would not be possible to hold that Art.142(1) confers upon the Supreme Court powers which can contravene the provisions of Art.32”.

Fundamental rights guaranteed under Part III of the Constitution of India are natural rights.  Natural Laws, jus naturale,are rules based on the primary instincts of man which are inherent in him which the State cannot violate.  It is the rights that shape the man.  Per Rousseau, the right was co related with might, meaning every man had a right to do with everything within his power.  Those rights became restricted with the growth of the society, in the collective interest of the people, paving the way for democracy.  The Magna Carta acknowledged that there were certain rights of the subject which could not be violated even by a Sovereign.  It culminated in the Bill of Rights of 1689 in England which was a testimony to the development of fundamental rights : “It may be declared and enacted, that all and singular the rights and liberty asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this Kingdom.”

On November 26, 1949, we, the people of India, gave unto ourselves the Constitution of India. The fundamental rights guaranteed in our Constitution imbibes the spirits of U.S. Bill of Rights 1791, French Revolution 1789 and the English Revolution 1688 which proclaimed the valuable rights of liberty, equality and freedom of religion. The fundamental rights under Part III of the Constitution of India are inviolable and inalienable rights which cannot be abrogated by the Parliament (Kesavanandabharathi,((1973) 4 SCC 225).

Constitution of India has in fact put a fetter on such natural rights by imposing reasonable restrictions. It is the people who have created the Government and the government is intended to serve the people and not dominate them. In Marbury v. Madison(5 U.S.137(1803) Chief Justice Marshall opined: “That the people have an original right to establish for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American Fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which their proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organises the Government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.”

In Texas v. Johnson (491 US 397(1989) the Supreme Court of the United States of America held that burning the U.S. Flag is an act of expression that is intended to convey a message.  The court went on to hold : “If there is a bedrock principle underlying the first amendment, it is that the government may not prohibit the expression of an idea simply because the society finds the idea itself offensive or disagreeable.”  When Article 19(2) of the Constitution of India restricts the State from enacting laws beyond its limit, it is imperative that the power of the State is restricted from enacting laws which foray into the fundamental rights guaranteed under Article 19(1)(a) of the Constitution. 

The constitutional philosophy underlining Part III of the Constitution of India is underlined in Ujjambai v. State of U.P. and in Minerva Mills Ltd. v. Union of India. In Ujjambai v. State of U.P. (1963 1 SCR 778). Per Hidayathullah J., “The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share in the Government of the country and other spheres. The people who vested the three limbs of Government with their power and authority, at the same time kept back these rights of citizens and also some times of non-citizens, and made them inviolable except under certain conditions. The rights thus kept back are placed in Part III of the Constitution, which is headed ‘Fundamental Rights’, and the conditions under which these rights can be abridged are also indicated in that Part”.

In Minerva Mills Ltd v. Union of India(1980 KLT 573 (SC) = (1980) 3 SCC 625), Chandrachud C.J., opined: “The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carries with it the obligation to secure to our people justice – social, economic and political. We therefore, put Part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part III in our Constitution conferring those rights on the people...”

The minority view of Justice Khanna in ADM, Jabalpur ((1976) 2 SCC 521) was accepted in Justice K.S.Puttaswamy’s(Retd.)case supra: “Justice Khanna was clearly right in holding  that the recognition to right and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the rule of law which imposes restraints upon the powers vested in the modern State when it deals with the liberty of the Individual”.

Per Justice Chelameswar in Justice K.S.Puttaswamy’s(Retd.)case supra, “I am of the opinion that a better view of the whole scheme of the chapter on fundamental rights is to look at each one of the guaranteed fundamental rights not as a series of isolated points, but as a rational continuum of the legal concept of liberty i.e., freedom from all substantial arbitrary encroachments and purposeless restraints sought to be made by the State.  Deprivation of liberty could lead to curtailment of one or more of freedoms which a human being possesses, but for interference by the State”.

Supreme Court held that the time has come the citizens of India are duty bound to respect the National Anthem. There is no clue from the Order as to what prompted the Court to thrust its importance now. One would feel that the Nation is moving through a phase where things are falling apart, and such respect is to be forced on the people. Is there a clear and present danger? The patriotic spirit is inherent in us. I am a Patriot. That does not mean that I should wear a badge of patriotism as part of my attire. In the words of Adlai E.Stevenson, Governor of Ilinois, in his speech to the American Legion Convention, New York City, 27.8.1952:

 “I venture to suggest that what we mean is a sense of national responsibility which will enable America to remain master of her power — to walk with it in serenity and wisdom, with self-respect and the respect of all mankind; a patriotism that puts country ahead of self; a patriotism which is not short, frenzied outbursts of emotion, but the tranquil and steady dedication of a lifetime.”

History has it that the Father of our Nation remained seated when ‘Vandemateram’ was sung post independence in a prayer meeting in Calcutta, on the firm belief that standing in honour to the National Song is part of Western culture and not inherent in our culture.

 Virginia State Board of Education v. Barnotte(1942-1987 Law Ed.1628) was a case decided by the Supreme Court of the United States of America in which Jehovah’s witnesses claimed that they could not be compelled to salute the flag of the United States while reciting the pledge of allegiance. Justice Jackson opined: “It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if theysimulate assent by words without belief and by a gesture barren of meaning (emphasis supplied). It is now a common place that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort to muffle expression. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”       (emphasis supplied)