The Constituent Assembly debates show that those who drafted the constitution did not favour the inclusion of symbols, such as the national anthem, in its text.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag… But I am not king,” remarked Justice Antonin Scalia, who upheld the right to burn the US flag.
While we may have adopted constitutional democracy, the conduct of the Supreme Court in the recent national anthem order, unfortunately, was not less than that of a king. As Pratap Bhanu Mehta pointed out in an article recently, the hallmark of the Supreme Court’s legitimacy is the legal reasoning on which its decisions are based. This rule of law is what distinguishes the decisions of a king from the duly appointed judicial officers in a democracy. In its national anthem order, the Supreme Court, however, seems to have waxed eloquent about national symbols while having short-changed reason.
The court in its order seems to suggest that citizens must show respect to all national symbols, with the national anthem and national flag being some of them. The court’s justification for this seems to be rooted in the fundamental duties prescribed in the constitution. However, the fundamental duties were only introduced by the 42nd Amendment during Emergency and were not part of the original text of the constitution. It is worth revisiting the constituent assembly debates in order to understand how the framers of our constitution originally understood the idea of our symbols.
Two days before India officially declared itself a republic, our national anthem was adopted by the Constituent Assembly on January 24, 1950. The adoption of the national anthem was one of the last formalities of the house. The national anthem was neither given a provision in the constitution’s text, nor was it adopted through a formal resolution. Instead, interestingly, it was adopted by a mere declaration by the president. Referring to the exact text of Rajendra Prasad’s statement on January 24 will be helpful:
“There is one matter which has been pending for discussion, namely the question of the national anthem. At one time it was thought that the matter might be brought up before the house and a decision taken by the house by way of a resolution. But it has been felt that, instead of taking a formal decision by means of a resolution, it is better if I make a statement with regard to the national anthem. Accordingly I make this statement.
The composition consisting of the words and music known as ‘Jana Gana Mana’ is the national anthem of India, subject to such alterations in the words as the government may authorise as occasion arises; and the song ‘Vande Mataram’, which has played a historic part in the struggle for Indian freedom, shall be honoured equally with ‘Jana Gana Mana’ and shall have equal status with it. I hope this will satisfy the members.”
This is how ‘Jana Gana Mana’ became our national anthem – by a mere declaration by the president of the Constituent Assembly. One may wonder why an important national symbol was not considered worthy of a constitutional provision, or at least a formal resolution. Interestingly, these questions didn’t escape the astute men and women who were entrusted with the task of framing our constitution. Several members such as Seth Govind Das and B.A. Mandloi expressed concerns about the constitution’s silence on the national anthem and advocated that “a provision should be included in our constitution which specifically fixes our national anthem”.
These members believed that the appropriate means of adopting our national symbols – including the national anthem and the national flag – was by creating constitutional provisions. But the wishes of these members were not fulfilled. Underlying the refusal of these proposals was the role of national symbols, as envisaged by our constitution framers, within our constitutional framework. N. Madhava Rao’s response to these proposals succinctly captures the constitutional idea of our national symbols:
“It is true that the draft constitution does not provide for all matters, or in just the way, that we would individually have liked … no reference is made to the father of the nation, the national flag or the national anthem… We have all our favourite ideas; but however sound or precious they may be intrinsically in other contexts, they cannot be imported into the constitution unless they are germane to its purpose and are accepted by the constituent assembly.” (emphasis added)
The Constituent Assembly debates clearly indicate a preference for not including symbols such as the national flag and the national anthem as part of the text of the constitution. This was because these symbols were not considered germane to the constitution’s purpose. This shows a profound understanding of the significance and the place of symbols in our constitutional democracy. Our constitution framers had a clear understanding that symbols, though important, do not define our nationalism, at least in the constitutional sense.
In contrast, the notion of individual rights was given a prized place in Part III, because they were considered absolutely essential to a rule of law society. This differential treatment of national symbols in comparison with fundamental rights brings out the priorities of Indian constitutionalism, at least the way our framers understood it.
In the order dated November 30, the Supreme Court, with due respect, must have caused certain framers of the constitution to turn in their graves. The Supreme Court seems to have placed the national symbols above fundamental rights:
“National anthem which is the symbol of the constitutional patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of having no space. The idea is constitutionally impermissible.”
In light of this, the Supreme Court’s remarks that the notion of individual rights is untenable with the constitutional scheme are deeply unfortunate.