Instilling a feeling of national unity can be a legitimate state interest but such a feeling cannot be pursued at the cost of individual liberty.Much ink has already been spilled for debunking the national anthem order, but of all the lapses that the Supreme Court has been charged with, two will prove to be especially disastrous for the fate of constitutionalism in India. These blunders relate to the judicial compelling of speech and the judicial whispering that constitutional liberty is at cross purposes with nationhood. In many ways, they already are a barometer of the state of judicial reasoning and rights protection in India.
An over-reaching and unaccountable court
Section 3 of the Prevention of Insults to National Honour Act, 1971 states:
Whoever intentionally prevents the singing of Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.
Justice Chinappa Reddy’s reasoning in the landmark Bijoe Emmanuel case that silence is a way of speaking constitutionally protected and his statement: “[n]ot singing National Anthem oneself clearly does not either prevent the singing of National Anthem or cause disturbance to any assembly engaged in such singing so as to constitute the offence mentioned in Sec. 3” should have applied in full to the present case.
Justice Dipak Misra should have affirmed that the act of not singing or not standing for the national anthem will not violate the 1971 law, as long as no disturbance or intentional disruption is caused to an assembly. Instead we get an order that countermands the progress made in these years by muzzling all speech when it comes to our ‘venerated’ national symbols. Not only does the order make the possible reasons and circumstances for not standing during the anthem immaterial, but it also goes a step further by compelling citizens to stand for the anthem every time they visit a movie hall.
One would have thought that this authority to curb citizens’s liberty and command a sit-stand-salute drill lay with the parliament – to bring such a law into effect the parliament would have to justify it under the ‘reasonable restrictions’ clause under Article 19(2) of the constitution. Had it been the parliament that passed such a law, the state-imposed restrictions could have either been found to be reasonable or struck down as arbitrary, unreasonable or disproportionate. The matter would have rested there.
However, Justice Misra read the constitution differently from all his peers and predecessors. He took it upon himself to conscript restrictions that go over and beyond the ones put in place by the parliament. The crucial difference here being that while a law would have had to go through legislative and judicial scrutiny and its makers would have ultimately been accountable to the people, Justice Misra is accountable to none. The judge’s role, in any version of constitutional democracy, is to be a gatekeeper of constitutional boundaries, an ever-vigilant defender of rights, not to author more restrictions on civil liberties. This blindsiding of institutional roles and powers might make Justice Misra a nationalist but barely leaves him a constitutionalist. If this is the role judges seek for themselves, then they must make themselves accountable under judicial review. The immunity from judicial review under Article 13 is to preserve the interpretive authority of the court, given the inevitability of disagreement emerging over its interpretations, not to shield episodes of absurd judicial law-making like the present one.
Freedom, not compulsion Lordships!
The other troubling aspect of the judgment is its poor grasp of basic concepts like freedom. The interim order reads:
“All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the national anthem.”
This mandatory playing of national anthem in the hall is an instance of ‘compelled speech’. Going by Bijoe Emmanuel, Article 19 (1) of the constitution guarantees ‘freedom’ to speak and cannot possibly envisage a ‘compulsion’ to speak in order to profess loyalty to the nation. For instance, the citizen’s freedom to settle in any part of the country cannot mean that the state will compel a citizen to settle in a particular province, thereby abrogating that freedom. Every time a person is made to stand for the national anthem in private spaces, the court is forcing citizens to announce their patriotism at a time and place chosen by it. This is as clear and dangerous an instance of coerced speech as any and should be examined for its reasonableness.
In West Virginia v Barnette, Justice Robert Jackson of the US Supreme Court found the compulsory salute of the American flag impermissible as it would mean that the First Amendment to the US constitution “guards the individual’s right to speak his own mind, but leaves it open to public authorities to compel him to utter what is not on his mind”. Misra, in the instant case, makes an argument for compelled speech:
“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.”
The tenor is emblematic of an undeclared emergency and marks a departure from the reasonable restriction doctrine, from ‘what should not be said’ (reasonable restrictions) to ‘what must be said’ (compelled speech). Legal scholar Gautam Bhatia has termed this tendency the “judicial censorship” of fundamental rights.
Does liberty endanger nationhood?
This compelling of speech also signals an overturning of citizens presumptive standing in the eyes of the state – from patriot to non-patriot unless one redeems oneself by singing, saluting, prostrating before national symbols in private spaces. This turn is symptomatic of the deeper malaise of nervous nationalism where questioning army methods is antinational, standing in bank queues a measure of loyalty and watching movies with Pakistani artists an act of treason.
Placing liberty at the altar of nationalism, Justice Misra rumbles:
“Time has come for people to realize that the national anthem is a symbol of constitutional patriotism…people must feel they live in a nation and this individually perceived notion of freedom must go…people must feel this is my country, my motherland.”
There cannot be a more acerbic indictment of liberty than accusing it of endangering nationalism. It is a familiar charge, very much in the mould of placing an individual against a collectivity, either in religious communities or political movements. There also cannot be a narrower conception of a nation than the one shaping this order. Justice Misra would do well to remember that Indian nationalism is comprehensive, not merely ethnic, cultural or religious. It is the cultural nationalism of the RSS or the religious nationalism of the Muslim League that has no place for liberty in their imagining of a nation. Indian nationalism was in many ways an effort to transcend the trenches of identity or ideology and counter the communitarian impulses that led to the vivisection of the subcontinent.
From its very inception, Indian nationalism has been defined by democratic ideals and diversity and has had liberalism embedded in it. It can only be strengthened by making a stronger case for constitutional liberty, not by eclipsing it through compulsory diktats. Instilling a feeling of national unity can be a legitimate state interest but such a feeling cannot be pursued at the cost of individual liberty. If we want our liberties, we will have it to protect it for ourselves and others, as and when they are threatened. We do not want to be the people whose freedoms are used to justify the curbing of others’ liberties. This has to become the charter of national sentiment, not some faint-hearted nationalism balanced on pins and needles.
Many missed opportunities
The compulsory expectation to stand for and sing the national anthem was relaxed in Bijoe Emmanuel and also the Karan Johar case on grounds of religious freedom and public disorder, respectively. India was waiting for a judgment that did not hide behind threats of religious or public pandemonium to allow for such a relaxation, but justified it on grounds of free speech itself. That wait has become more agonising with this order. It seems free speech will continue to be a scandalous idea for our judges and we will need to wear the virtuous mask of religion or administrative inconvenience to make an argument for the fundamental freedom to express ourselves. The failure to entrench symbolic speech as part of free speech will count as another opportunity missed for this judgment. Symbolic speech may be described as conduct that expresses an ‘idea’ or the ‘politics of a person’ and tries to make a larger point using venerated symbols. Thus, wearing a black band, not saluting the flag, not standing for the anthem may contextually qualify as ‘symbolic speech’.
The state stubbornly believes that a patriot is a person who cannot be ashamed of the state’s practices in any respect. This despite the state’s targeting of individuals for ‘who they are’ being a daily occurrence – where a person’s surname, gender, eating habits or his/her choice of partner is enough to make the person a victim of violence. A state which does not brook criticism is making its citizens parrots not patriots. Yet for a judgment that has recanted hard-won victories over the years, missed opportunities will hardly register as censure.
Who is a patriot?
The judiciary – as an unelected, independent institution – is expected to weigh the consequences of its judgments on a scale of constitutional morality. Instead of being a bulwark against the culture of fissure-politics, this order is yet another conforming voice added to the nationalist brigade’s suffocating narrative. In these times, where ‘patriotism’ is invoked as a guillotine when it comes to discussing uncomfortable questions about state power and authority, it is worth recalling the words of American satirist and cultural critic H.L. Mencken:
“The notion that a radical is one who hates his country is naïve and usually idiotic. He is, more likely, one who likes his country more than the rest of us, and is thus more disturbed than the rest of us when he sees it debauched. He is not a bad citizen turning to crime; he is a good citizen turning to despair.”
When it convenes to pronounce the final judgment in this case, the Supreme Court will hopefully take a leaf from Mencken’s words and realise that sometimes there is more national service in not standing than suffering mind freeze at the trumpet call of the national anthem. The Supreme Court would also do well to pose a question to itself – if Justice Misra had authored the judgment that was overturned in the Karan Johar case, how could he hear a PIL on the same issue filed by the same petitioner? After all, what version of constitutional patriotism or judicial propriety allows Misra to judge his own case?
Satya Prasoon is a graduate of NUJS Kolkata, and a lawyer and independent researcher based in New Delhi.