In the seminal decision of West Virginia State Board of Education v. Barnette 319 U.S. 624, Justice Robert Jackson, speaking for the majority of the US Supreme Court, whilst enjoining the enforcement of a regulation of the West Virginia State Board of Education requiring children in public schools to salute the American flags, observed, “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the state as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us” .
The last few sentences of the passage above were quoted, with approval, by our Supreme Court in Bijoe Emmanuel & Others v. State of Kerala (1986) 3 SCC 615, wherein Justice O. Chinnappa Reddy held that the expulsion of three students from school for not singing the national anthem in the morning assembly infringed their fundamental rights guaranteed under the constitution.
However, a few days ago, the Supreme Court, perhaps unmindful of its own historical traditions and arguably beyond the limits of its own constitutional authority, when hearing a petition seeking directions against the union government to take appropriate steps to specify what would constitute disrespect and abuse of national anthem within the meaning of the Prevention of Insults to National Honour Act, 1971, issued interim directions, inter alia, to all cinema halls in India to play the national anthem before the start of a feature film and forall those present in the hall to stand up to show respect to the national anthem. Perhaps more significantly, in a stinging passage, the Supreme Court went on to defend its mandatory directions, and inexplicably, observed, “Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to national anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or perception of individual rights that have individually thought of have no space. The idea is constitutionally impermissible.”
The decision certainly marks an aberration in the history of the Indian judiciary, which so far has, for the most part, exercised a self-imposed judicial restraint in areas constitutionally reserved for the legislature and the executive. Our constitutional structure envisages a division of powers between the legislature, the executive and the judiciary, which offers a useful means of maintaining ‘checks and balances’. Reposed with the confidence of the electorate, the legislature is entrusted with the task of framing laws. The executive is tasked by the legislature with implementing the laws framed. The judiciary, as an un-elected body, is tasked with interpreting such laws and ensuring that they do not infringe the fundamental rights guaranteed by the constitution. By encroaching into the function of the legislature and the executive, and passing these mandatory directions without public discourse or deliberations, the Supreme Court has bypassed this system of checks and balances, so carefully engrafted by our framers into the Constitution.
The direction issued by the Supreme Court to mandatorily play the national anthem at cinema halls before the start of the feature film and for all those present in the hall to stand and show respect to the national anthem is, at the very least, curious. First, there appears to be no rational basis for singling out cinema halls. People go to cinema halls for the purpose of entertainment and the playing of the national anthem has no reasonable nexus to this activity. The Supreme Court could have equally and perhaps on a more justifiable ground directed all government offices, schools, colleges, civil and criminal courts across the country to observe this practice of playing the national anthem at opening or closing hours.
Secondly, the direction mandates that all persons present in the hall should stand up to show respect to the national anthem, irrespective of any physical handicaps. Not too long ago, a man in wheelchair was reportedly harassed by fellow audience members for not standing up when the national anthem was being played at a cinema hall. The direction would serve as a shot in the arm for such miscreants serving kangaroo justice.
Thirdly, by mandatorily requiring cinema halls to play the national anthem before the start of a feature film, the Supreme Court is forcing its view of patriotism upon people. Patriotism can be expressed in many different ways and certainly in a more useful manner than standing up for the national anthem before the start of a movie.
Perhaps even more absurd is the basis for the order itself. The term ‘constitutional patriotism’ has been repeatedly used by the Supreme Court without offering any explanation to its meaning. Ironically enough, the term constitutional patriotism has been popularised in the English-speaking world through the writings of political theorist Jurgen Habermas and emerged in post-Nazi Germany as a counter to traditional nationalism. The idea of constitutional patriotism postulates that the idea of political attachment ought to centre on the norms, values and procedures of a liberal democratic constitution as opposed to a national culture. By definition, the concept of constitutional patriotism is antithetical to the very idea sought to be encouraged by the Supreme Court –adherence to the national anthem, as a cultural symbol.
Jay Manoj Sanklecha is a graduate of the National University of Juridical Sciences, Kolkata, and works with a law firm in Mumbai.