SC’s National Anthem Order Offends Principles It Wants To Uphold
There is a time and place for everything – “a time to weep and a time to laugh, a time to mourn and a time to dance… a time to be silent and a time to speak.” A cinema hall is neither the place nor a movie is the time to sing the national anthem.
Any action has to be suitable to the situation and appropriate to the occasion. While a demand for namaaz on the highway cannot be tolerated, singing Vande Mataram at the end of a parliamentary session may be defended, as the national song played a “historic part in the struggle for Indian freedom”. Its rendering in Parliament is appropriate, the institution being symbolic of popular sovereignty acquired only after Independence.
But it would be outrageous to suggest that judges and lawyers in the Supreme Court should start singing the National Anthem before the court commences a hearing involving adjudication of constitutional issues celebrating “constitutional patriotism”. Because the commitment to the principle is expressed in fidelity to the constitutionally-sanctioned process and the maxims which shepherd it, involving much more than mere lip-service to the foundational principle of our polity. An assiduous performance of religious rituals, after all, is no guarantee of any deep-seated piety.
Patriotism is not so shallow as to be satisfied by mere waving of flags or singing of an anthem.
Reasonable Restrictions Under The Constitution
Watching a movie is a time to be entertained, a time for distraction and diversion. It is a ceremony, but not one which is either political or religious. And although the place is public, the occasion is of private recreation and leisure.
It symbolises a cohesive society where strangers can fraternise in an orderly fashion and celebrate inventiveness, ingenuity and imagination. It is the time to laugh, the time to dance and not to sing the national anthem. This is a basic right inherent in every citizen of a free country.
This right under our constitutional scheme is subject to “reasonable restrictions”. In considering the “reasonableness” the court evaluates “the nature of the right alleged to have been infringed, the purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied, the disproportion of the imposition and the prevailing conditions of the society.”
Considering the “nature of the right” which a cinema-goer has, the “purpose” of the imposition has no bearing whatsoever on it and in taking a subjective view of the “prevailing conditions” to limit the right through the proposed directions itself, offended the principle of “constitutional patriotism”.
Constitutional Patriotism: A Complex Concept
Constitutional patriotism involves commitment to the values of the Constitution rather than national culture. However, it is a complex concept involving, in varying degrees, both liberal nationalism and cosmopolitanism, and is post-nationalistic.
It is difficult to fathom how the use of the National Anthem in the order fits into the concept because a variant of constitutional nationalism may well permit opposition, not allegiance to the concept of actually singing the national anthem. The Supreme Court should be better advised not to present as a straightforward matter, something as tangled and involved as constitutional patriotism.
SC Order Has Violated The Rule Of Law
One of the values of the Constitution, however, is the rule of law which justifies stare-decisis. Jeremy Waldron writing in the Michigan Law Review explained the justification as the requirement that people in positions of authority exercise their power under the authority, and within a constraining framework, of public norms (laws) rather than on the basis of their own preferences or ideology. The Supreme Court has actually acted in violation of this principle.
In Bijoy Emmanuel’s case, the Supreme Court while setting aside the expulsion of school children belonging to the Christian sect Jehovah’s Witnesses – who “respectfully stood during the recitation of the National Anthem during morning assembly at school”, but did not sing because they “truly and conscientiously” believed that their religion did not permit them to join any ritual, except prayer to Jehovah – ruled, “in fact there is no provision of law which obliges anyone to sing the national anthem.”
This judgment formed the “constraining network” of law-enforcing constancy and predictability on the Supreme Court for it not to direct, and that too through an interlocutory order, that the managements of cinema halls cause the national anthem to be sung before the film starts. The direction is breach of judicial discipline.
This is more so because there was no occasion for the Supreme Court to pass the said direction as the only averment made before it was that “sometimes national anthem is sung in various circumstances which are not permissible…The emphasis is on showing requisite and necessary respect when the national anthem is sung.”
The order does not record that it was pleaded before the court that the National Anthem must be sung before a movie is exhibited and the order is clearly beyond the submission made before the court.
Duty To Sing National Anthem Not A Fundamental Duty
Reliance on Article 51A, that lays down fundamental duties, is equally misplaced. All that the Article says is that every citizen shall “abide by the Constitution and respect its ideals and institutions, the national flag and national anthem.”
The provision only stipulates, to borrow an expression from the United States versus Eichman (wherein the US Supreme Court invalidated a federal law against flag desecration) that there be no “disrespectful treatment” of the national anthem and that all action be “consistent with its symbolic value.” Duty to actually sing the national anthem cannot be read into Article 51A.
And Prevention of Insult to National Honor 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.
Patriotism Does Not Require Judicial Orders
Tom Tyler dealing with the subject “Why people Obey the Law” contrasted the “instrumental perspective” with the “normative perspective” of law. Unlike the former, explained Tyler, which regards compliance as being warranted by external factors – the immediate incentives and penalties associated with the law – the latter focuses on internalised norms of justice and obligation.
Patriotism has nothing to do with sentiments of gain or loss and is incapable of being enforced instrumentally. Patriotism is assumed voluntarily and people are committed to it for its own sake. Patriotism does not require judicial orders for recognition or legitimacy. Let’s not embarrass or degrade patriotism or the national anthem.
(The article was originally published on BloombergQuint.)
(Aman Lekhi is a Senior Advocate at the Supreme Court of India and writes on constitutional and commercial law issues.)
(The views expressed here are those of the author’s own and do not necessarily represent the views of BloombergQuint or its editorial team.)
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