Insights into Editorial: Making of a legislative court (National Anthem Issue)
The Supreme Court of India, recently, gave an order that the national anthem will have to be played before feature films at cinema halls all over the country, and that those present in these halls are obliged to stand up to show respect. While the move is welcome, the manner in which it is being enforced has attracted criticisms from many sections across the country.
- This effectively reverses an earlier judgment of the Supreme Court, which ruled that not standing up for the anthem does not amount to disrespecting it, going by the Prevention of Insults to National Honour Act, 1951.
- The order has also triggered a debate among the intelligentsia of the country. Many have argued that people should not be forced to stand for the National Anthem in cinema halls.
What’s the concern now?
By taking the patriotism test into the cinema hall, by forcefeeding a notion of nationalism to people seeking entertainment, the court has not just offered an instance of striking judicial overreach. It has also let down all those who have come to look up to it as a custodian of constitutional freedoms. That the court is invoking the Constitution while moving against its spirit is even more disquieting.
What the constitution says in this regard?
India’s Constitution speaks of respect to the national flag and anthem as a fundamental duty in Part 1V A — a non-justiciable part of the document. Article 51(A) says that “it shall be the duty of every citizen of India — (a) to abide by the Constitution and respect the ideals of the national flag and the national anthem”. The message of the founding fathers was clear: Respect to the nation and its symbols would not be enforced by state diktat or extracted through legal compulsion. These Duties are, perhaps not coincidentally, currently in vogue even outside the judiciary.
Issues associated with this move:
Mandatory screening: There is no objection to cinemas choosing to screen the anthem if they want to. Nor is there an objection to the anthem being sung in sports stadiums or elsewhere by anyone who wants to sing it. But there is absolutely no legal basis to compel cinemas or any other private entity to screen the anthem. Forcing private institutions to play the anthem is a clear violation of their freedoms of free speech and trade.
Compelled standing: In 1986, the Supreme Court made it clear that “no provision of law obliges anyone to sing the anthem.” Mandatory singing violated the constitutionally-guaranteed right to free speech, the court said, but there was a duty to stand when the anthem was sung. That position remains the law today. But, for many, standing need not be necessary to demonstrate respect; and for some, being forced to participate in arbitrary exhibitions of nationalism is undemocratic. The point of a free society is to allow everybody in it to peacefully express themselves. When the state compels people to stand for the anthem, it takes away some of that freedom.
Ban on dramatization: The Supreme Court’s 1986 judgment on respecting the anthem was delivered in the context of school assemblies. The court said nothing about the anthem being sung by actors in a movie.
No constitutional mandate: The constitution does not mandate that one must stand in attention when the national anthem is being played or when the flag is raised. Constitutionally and legally, one is only obliged not to show disrespect to the anthem.
Prevention of Insult to National Honor Act: The act to which the court referred to, deals with “preventing the singing” of the National Anthem or causing disturbance to any assembly “engaged in singing” of the Anthem but makes no provision enforcing the actual singing of the National Anthem.
There is no question that judicial independence is of paramount importance. Whatever scheme of selecting judges we adopt should ensure that. But equally, it is important for the judges to demonstrate that independence does not become an excuse to create a judiciary that is poor in quality, undiscerning in its judgment, not aware of basic moral distinctions, populist rather than legal, sentimental rather than reasoned, casual in its understanding of when rights are being violated, impractical in its orders, but most of all, imperious in the way it usurps all powers for judges.
The critics of the decision say that feeling of love and respect for the country should come to a citizen from within and something as sacred as the National Anthem should be played or sung only on special occasions. There have been instances of vigilantism in movie halls and other public spaces targeting people for their unwillingness or inability to wear their patriotism on their sleeve. That the highest court of the land could join in this growing, dreadful clamour is a disturbing prospect. The court must urgently review Tuesday’s order.
Respect for one’s country depends entirely on the way we think; it’s a way of life. It cannot be taught. Neither can it be enforced or imposed upon us. And it definitely should not be neatly wrapped in a bow and presented to us as “committed patriotism and nationalism”, because then we begin to tread a complicated territory. Rabindranath Tagore, the author of Jana Gana Mana, fiercely voiced against the “bondage of nationalism”. He wrote in The Modern Review, a respected Calcutta journal that the time, that he hoped to “achieve the unity of man by destroying the bondage of nationalism”.