National Anthem Case: SC Seeks Refuge in Constitutional Patriotism
When courts are willing to embrace the ruling party’s interests as its own, there’s little hope for Indian citizens.
The order of the Supreme Court directing that all who wish to watch a film in a theatre be forced to stand for the national anthem is an affront to the Constitution, and a disgraceful dereliction of the judges’ constitutional duty.
It is the result of a perfect storm of an institutional disdain for fundamental rights and a certain judge’s personal beliefs, portending a black future for civil rights in India.
To recap, a public interest litigation was filed, demanding that the Supreme Court compel citizens to stand up for the national anthem before films are screened in theatres.
Far from asking what fundamental rights are involved and what larger public purpose is to be fulfilled by this, the Court was only eager to hear this case and rush to pass orders, with the help and encouragement of the Central Government.
The case itself was filed in October 2016 and in a little more than a month, an “interim order”, which has effectively granted the final relief asked for, has been passed. If the Supreme Court functioned at this speed for regular cases, it could have been held up as a model of judicial efficiency for not just India, but the whole world.
The order is entirely contrary to the Constitution and flies in the face of past precedent.
While the Supreme Court may be unconcerned about such things, the reader may be interested to know that the Supreme Court in 1986 had held that it is not mandatory to sing the national anthem and one cannot be compelled by law to do so.
It is an aspect of the fundamental right to freedom of speech and expression, and in that case, also related to the right to religious freedom. It is also important to remember that Fundamental Duties, inserted through the notorious 42nd Amendment to the Constitution during the Emergency, are not enforceable in a court of law, contrary to what the Supreme Court has said in this case.
In fact, the court dismisses the very existence of freedom in one line:
It (sic) does not allow any different notion or the perception of individual rights, that have individually thought of have no space.
The present case has highlighted how the concept of “public interest litigation”, created to defend and expand fundamental rights, has been perverted by some litigants, with help from the Government and the Supreme Court itself, into a tool for snuffing out what little rights are available.
PILs by Headline-Hunting Lawyers
PILs are now almost exclusively filed by headline-hunting lawyers and encouraged by judges who want to read about themselves in the next day’s papers. The culmination of this trend is seen in Wednesday's order.
This isn't the first time that Justice Dipak Misra has authored a judgement that has narrowed down the freedom of speech and expression even further.
He has, in the past, invented a new ground for restricting fundamental rights, forbidding criticism of public figures, and held that the right to reputation supersedes any freedom of speech in the context of criminal defamation.
This is not even the first time that he has used the national anthem to trample on the freedom of speech. As a judge of the Madhya Pradesh High Court, Justice Dipak Misra was on the Bench that held that the film Kabhi Khushi Kabhi Gham would not be screened in any theatre unless the national anthem in the movie was removed.
This order was eventually stayed by the Supreme Court. By convention, he is in line to be the Chief Justice of India. In any case, the general atmosphere surrounding Indian’s civil rights has deteriorated in the last few days.
With these directions to the State Governments, the Supreme Court has shown no concern for the disabled, the infirm, or even its own earlier directions for the safety of viewers.
Hysteria Over “Patriotism”
That, however, is only a second-order problem with these directions. The main problem lies with the obnoxious and offensive line of thinking, which makes the court embrace the present government’s artificial hysteria over “patriotism”.
Patriotism is indeed the last refuge of the scoundrel, and finding no law, constitutional provision or principle to justify its directional, the Court takes refuge in “constitutional patriotism” to justify this encroachment of our freedoms.
It is actually unclear what the court means when it uses the words “constitutional patriotism” in its order. In constitutional theory and philosophy, it refers to the set of beliefs where people adhere to the constitution and its principles, rather than narrow ethnic, racial, regional, or linguistic identities.
It is considered essential to the protection of a liberal, democratic order – a far cry from a court using it to compel citizens and running roughshod over individual rights.
There is still a small chance that if enough concerned persons and civil society bodies intervene in the pending case, the court might be convinced to change its mind.
However, as the experience of Emergency showed though, when the Court is willing to embrace and adopt the ruling party’s interests as its own, there's little hope for India's citizens.
(Alok Prasanna Kumar is an advocate and Visiting Fellow at the Vidhi Centre for Legal Policy. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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