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print version- Judicial Overreach: Forcing moviegoers to stand up for the national anthem won’t make them respect it - TOI edit
- Jana gana mana - Editorial, Indian Express
- Saluting the Flag: Apex court over-reaches itself - Editorial, The Tribune
- Reeling out patriotism - Baradwaj Rangan
- Stand up for the national anthem please: Going to a cinema to reinforce patriotism by Binoo K John
- India’s national anthem is not a tax that requires compliance - Gopalkrishna Gandhi
- SC order on national anthem in cinema halls mirrors aggressive hyper-nationalism by Harsh Mander
- Pouring supreme scorn on liberty by Nitin Pai
- Jana Gana Mana and the Danger of Passing Sentiment as Law by Lawrence Liang
- The Illegality of the Supreme Court’s National Anthem Order by Gautam Bhatia
The Times of India - December 1, 2016
Editorial
Judicial Overreach: Forcing moviegoers to stand up for the national anthem won’t make them respect it
Yesterday the Supreme Court directed that the national anthem must be played before all film screenings at cinema halls across the country. And while the anthem plays, everyone in attendance must stand up to show respect. The top court reportedly said, “People nowadays don’t know how to sing national anthem and people must be taught.†This raises questions, first, about judicial overreach and second, about infantilising citizens. The job of the judiciary, including the Supreme Court, is to interpret laws and not to make them. Democracy relies on this separation of powers. But accusations of judicial overreach have become common precisely because the judiciary often usurps legislative authority.
Second, how short is the journey from mandating that everyone sing the national anthem before a movie to mandating it before every cricket match or even every commercial flight getting off the ground? This is not a silly question. It’s a serious contention that coercive nationalism demands an endless flattening of identities and behaviours. It’s offended by the rich diversity of our democracy. But nationalism should not just be something angry, punitive and authoritarian. It should also be a thing of beauty, excellence, consideration for all. The positive spirit cannot be coerced. The song dictated by force won’t be as sweet as the one that’s freely sung. When people are pressganged to show respect for the national anthem their real feelings may end up as entirely the opposite.
Finally, this court ruling comes against the backdrop of India’s great pendency of cases worsening with an eyeball to eyeball confrontation between government and judiciary. The matter of the national anthem is not urgent but is being ruled upon – while the finalisation of a new procedure to appoint judges remains in limbo.
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The Indian Express - December 1, 2016
Editorial
Jana gana mana
Forcing someone to play — or to hear — the national anthem is an insult to its very idea and promise.
It is an especially chilling moment when the Supreme Court curbs individual freedom in the name of nationalism. It’s the Supreme Court which has often protected and upheld the rights and liberties of the individual and the minority against attempts by the state to encroach on them, often in the name of the majority’s mandate. But Tuesday’s directives on the national anthem — it shall be played in all cinema halls, everyone shall stand up as a mark of respect, with all exits closed off, among other do’s and don’ts — are a clear and troubling backsliding from that record. By taking the patriotism test into the cinema hall, by forcefeeding a notion of nationalism to people seeking entertainment, the bench of Justices Dipak Misra and Amitava Roy has not just offered an instance of striking judicial overreach. It has also let down all those who have come to look up to it as a custodian of constitutional freedoms. That the court is invoking the Constitution while moving against its spirit is even more disquieting.
India’s Constitution, after all, speaks of respect to the national flag and anthem as a fundamental duty in Part 1V A — a non-justiciable part of the document. Article 51(A) says that “it shall be the duty of every citizen of India — (a) to abide by the Constitution and respect the ideals of the national flag and the national anthem†. The message of the founding fathers was clear: Respect to the nation and its symbols would not be enforced by state diktat or extracted through legal compulsion. Before Tuesday’s order, the apex court might also have done well to re-read one of its own judgements, which invoked and interpreted Article 51(A). In August 1986, in Bijoe Emmanuel & Others vs State of Kerala & Others, for the bench of Justice O. Chinappa Reddy and Justice M.M. Dutt, the question was: Did the refusal of three children, belonging to a sect called Jehovah’s Witnesses, to sing the national anthem during the morning assembly — because according to them, its singing is against the tenets of their religious faith — justify their expulsion from school? Calling the expulsion a “violation of the fundamental right to freedom of conscience and freely to profess, practise and propagate religion†, the apex court said that “there is no provision of law which obliges anyone to sing the national anthem…†It concluded: “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it†.
In March this year, the political resolution adopted at the BJP national executive insisted that chanting “Bharat Mata ki Jai†is a constitutional obligation. In the same month, an elected legislator from the AIMIM, Waris Pathan, was suspended from the Maharashtra assembly for refusing to chime in. There have been instances of vigilantism in movie halls and other public spaces targeting people for their unwillingness or inability to wear their patriotism on their sleeve. That the highest court of the land could join in this growing, dreadful clamour is a disturbing prospect. The court must urgently review Tuesday’s order.
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Editorial
Saluting the Flag: Apex court over-reaches itself
It seems the Age of Firmans is firmly upon us. One day one constitutional authority issues a firman to demonetise currency notes, and, then keeps on issuing firman after firman, amending the original firman. Now the Supreme Court has joined in the fun. A two-judge bench has decreed that national anthem must be played in cinema halls before a feature film starts and all those present inside the hall would be obliged to stand up as a mark of respect. No one should have a reason to quibble with the sentiment behind the hon’ble court’s order. Their Lordships, though, have left it rather vague as to what happens to anyone who may seem to be in less than total compliance with the judicial firman. Their Lordships have made it clear that they expect all the Chief Secretaries to enforce the judicial order. Suddenly, one more minatory layer stands imposed on the citizens.
All nation-states are artificial constructs. Consequently, all societies find themselves having to devise collective symbols of veneration and respect; and, all societies expect their citizens to observe the rites of outward obeisance to national symbols, flags, anthems. The society and its institutions like schools take it upon themselves to inculcate among the young a sense of collective solidarity, a bond of belonging. We have also exquisitely crafted republican rites like the Republic Day Parade and the Independence Day celebration at the Red Fort. Like other nations, we have our own rituals and ceremonies to reaffirm and restate our collective existence.
Yet there is something less than reassuring in this essay in judicial populism. It is neither the role nor the place of the judiciary to insist on instilling “a sense of committed patriotism and nationalism.†That is a task best left to social reformers, political demagogues and cultural taste-makers. Nationalism is a noble sentiment; its spiritual luminosity is sufficient in itself of extracting a coherence of belief, loyalty and instant respect from the citizen. An enforced nationalism can only be a shallow, and perhaps, a shabby bond. Even without the benefit of a judicial firman, India and its people are perfectly capable of producing a joyful celebration of our collective destiny and dreams. Jai Hind!
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Reeling out patriotism
Baradwaj Rangan
The Supreme Court’s ruling on the national anthem is yet another instance of the movies being a soft target for tokenistic measures
Why is it always the movies? Take smoking. There are many ways to bring it down. You can stop the sale of single sticks, force people to buy a pack every time they feel like lighting up. You can raise the cost of packs. What we get instead is a disclaimer at the bottom of the screen every time the villain’s henchman is caught chomping on a bidi.
There is an artistic argument against this imposition. Woody Allen refused to allow Blue Jasmine to be screened in India with this disclaimer, saying that “when the scroll comes, attention goes to it rather than the scene†. But brush aside artistry and just consider logic. If the reasoning is that films are widely seen and that this tiny print at the bottom is an educational measure against a harmful act, then why not a disclaimer every time a rape occurs on screen? Or every time a man stalks a woman, trying to get her to reciprocate his love? Or every time thieves hatch a plan to rob a bank?
Popcorn patriotism
And now, the Supreme Court has ruled that the national anthem must be played in cinema halls across the country before a film is screened, and everyone present must stand to pay respect. Forget, for a minute, the arguments about personal choice, about freedom in a democracy. Screenwriter Aaron Sorkin put it best in these lines he wrote for the scarily prescient The American President, when an Obama-like liberal finally rose to respond to the accusations of a scaremongering demagogue. “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing centre stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can’t just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest.†That this Utopia is becoming (or has become) a pipe dream is no longer under contest.
But why movies? There are many situations and avenues that warrant the national anthem, if the purpose is indeed to teach people the words. (That is part of the Supreme Court ruling’s agenda.) It makes sense to play the anthem every day at school and college. (Catch them young.) It perhaps makes sense before television news — this is, after all, news about the nation. It may make sense when our cricket team beats England. It may even make sense before certain films — serious films like Swades or Border that deal with “nationalistic†subjects. But how can the compulsory presentation of the national anthem before a Sunny Leone or Salman Khan-starrer be considered a form of respect?
To expect “pride†from a ticket buyer who wants nothing more than to forget his troubles with overpriced popcorn and soda, and a mindless movie, is even more of a pipe dream. One could make the case that we are, in fact, disrespecting the anthem by associating it with a medium that — nine times out of ten — makes no bones about being “commercial†. In other words, after standing up for the anthem, you’re going to be sitting down for a cleavage-popping item number.
Theatre of the absurd
A bhajan belongs in a temple, and even if sung or played outside, it retains its reason for being only when it’s a festival or at an event that’s holy and pure, untainted by commercial considerations. The national anthem is not unlike a bhajan. It’s an expression of one’s reverence for the country. It stirs the soul, makes us feel patriotic even when things around us make us angry about the state of the nation. But enforced patriotism is simply transforming a private emotion into tokenistic public spectacle. You stand up not necessarily because you want to, but because if you don’t, you’re likely to labelled a traitor, or worse, screamed at or assaulted by self-styled nationalists, which is what happened at a Panaji theatre in October with poet, disability activist and writer Salil Chaturvedi, who did not stand up for the national anthem because he could not stand up. He was in a wheelchair.
Chaturvedi was quoted as saying, “I just don’t understand why it seems impossible for so many people to express patriotism in a non-aggressive manner.†And there are many ways to prove your love for your country. You could contribute to flood relief or volunteer in a tsunami-stricken area or ensure the domestic help has enough cash till she gets used to plastic — all of this is a form of loving, caring for, respecting the nation. Because a nation is its people. Love Indians, and you love India. But that, apparently, isn’t enough. Now you have to prove it every time you watch Rajinikanth beat up a hundred bad guys. Somewhere, Manoj Kumar is smiling and readying his next script.
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Stand up for the national anthem please: Going to a cinema to reinforce patriotism
by Binoo K John
The Supreme Court’s order passed on 30 November - that the national anthem should be played in all theatres while the national flag flutters on the screen - exposes the lack of ’underconfidence’ of the establishment and the nation itself.
There are various issues that have been thrown up by this judgement apart from the immediate one about why there should be a judicial imposition of nationalism when the Executive is doing the job rather well and vehemently, if one can say so.
Is the judiciary lending the mighty Executive a helping hand or is there a feeling among learned judges that it is not jingoistic enough?
The judgement has far-flung implications beyond the five-minute homage to nationalism at the beginning of a movie.
It is difficult to understand what purpose is served by playing the national anthem in a theatre. A cinema hall - where all sorts of violent or tawdry films are screened - is not the place for such a sacrosanct song. So before we see a movie glorifying violence, or commodifying women, will the singing of the national anthem, serve to purge us of our guilt?
Of bad movies and good nationalism
The practice, effectively, forces us to reassert our patriotism every time we see a movie or go anywhere else to entertain ourselves.
What has allegiance to the nation got to do with the watching of a terrible movie in which all the larger notions of a just life are splintered? What is the intention here?
What if the movie itself is against the notions of nationalism, which it will be if the movie is an objective bio-pic of Rabindranath Tagore himself. Such a movie will clearly have this pronouncement of Tagore who turned against the notions of nationalism and national boundaries.
This is what the author of Jana Gana Mana said: "India has never had a real sense of nationalism. Even though from childhood I had been taught that the idolatry of Nation is almost better than reverence for God and humanity, I believe I have outgrown that teaching, and it is my conviction that my countrymen will gain truly their India by fighting against that education which teaches them that a country is greater than the ideals of humanity."
Right and rights
The judgement is in keeping with the ascendancy of extreme right-wing discourse in the country since 2014.
Sewn into this discourse is the belief that a country and a nation are built according to a puritanical imagination where the dirty, the rebels, the jailed, the starving, the criminals and those criminalised by the State have no place or entry.
Such occasions are also used to single out people who are seen as enemies of the nation because they chose to sit down during the playing of the national anthem.
In the US for instance, over the last two months, black players in the National Football League have chosen to kneel down as the national anthem is played in protest against the treatment of blacks in the country.
President Obama found no fault with such an action. In fact, he supported it. This is how modern,confident nations should actually behave: by giving space to rebels and outliers to question the notions of nationhood and justice.
Last year, actor Ameesha Patel was trolled for refusing to stand while Jana Gana Mana rang out at a PVR theatre in Mumbai. She said she had a "girly problem" and called the person who Facebooked her picture in the cinema hall a "jackass".
Now such instances of harassment, mostly of minorities, will increase. The Supreme Court has just given these trolls full sanction.
So, where does the national anthem ideally belong?
The national anthem should be played only on occasions where nationality or nationhood is the prime reason or logic. International sporting events like the Olympics, for example, are the right place for the reassertion of nationhood since countries compete against one another to assert physical supremacy. In a cinema hall, no such issue is at stake.
The playing of the national anthem in a theatre is a relic of the pre-television days when propaganda or short films (newsreels) made by the government had to be screened by law.
The Prevention of Insults to National Honours Act, 1971, does not prescribe a punishment for sitting during the national anthem. Only if someone prevents its singing or causes "disturbance to any assembly engaged in such singing shall he be punished with imprisonment for a term which may extent to three years".
However, the Home Ministry Rules state that citizens must stand in attention when the anthem is sung.
However, the rules also say that indiscriminate playing of the anthem should be discouraged. Playing the anthem at the cinema hall is not among the occasions mentioned in the ministry guidelines. The SC judgement now changes this.
A movie screening is not a nation-sponsored event. The fact that as citizens we are required to reassert our patriotic values just before watching Salman Khan beat up a thug is nonsensical.
In fact, in many films, villainy is the main attraction and Bollywood baddies are more talked about than the heroes. Why should we sing the national anthem before we embrace villainy, violence and double entendres?
The views expressed here are personal and do not necessarily reflect those of the organisation.
Edited by Jhinuk Sen
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India’s national anthem is not a tax that requires compliance
Gopalkrishna Gandhi
Standing for the national anthem is a “sign†of respect. But more importantly, it is the mark of a relationship. The anthem starts with “jana†, the people. And it talks of the jana’s mana, that is, the people’s minds. It does not talk of the nation-State, the government, its laws and rules (Representative Photo)
Respect is one thing, obedience another; devotion is one thing, compliance another; commitment is one thing, submission another.
I respect my nation’s anthem, I am devoted to Tagore’s great vision in it. I am committed to the integrity of my nation as it stands visualised, region by region, river by river, in its image of India conjured by its diverse people — “jana†.
No one needs to make me respect that song, be devoted to it, and committed to it. The national anthem is not a traffic signal that has to be respected. It is not a tax that requires compliance. It is not a test that has to be submitted to. It is the poetic equivalent of collective pride, the lyrical expression of a nation’s resolve to advance from ancient primitivisms and medieval bigotries to a future in dignity and justice. If songs are sung because one wants to sing them, heard because one wants to hear them and not under orders, anthems are sung or played when the occasion and the moment for it is right, when the sound of it saturates one’s sense of belonging to the greatness of India, and the greatness of India belonging to oneself.
India is all Indians and all Indians are India.
This is the essence of Tagore’s great vision in the anthem. It also happens to be the core of our Constitution’s sense of its goal. They are testaments, both.
One does not make an affidavit of an anthem. One does not make a contract of a Constitution. Those are written by visionaries, not notaries.
There has never been an occasion, not one, when I have not stood instinctively as the national anthem is announced. Not with ritual reflexiveness but with the surge of pride in my nation, my Bharat, suffusing my heart and mind. Let me recall two such.
On August 15, 1997, the 50th anniversary of our Independence was marked in Cape Town, South Africa’s part-capital city at a historic event. Nelson Mandela was president. He did not as a matter of routine attend receptions organised by different embassies on their national days. But India was India and this was no ordinary national day; it was India’s 50th. He needed no persuasion. Departing from standard protocol, he came with a spring in his gait, a smile of infinite warmth on his face. India and South Africa represented two struggles, one freedom. All of us present stood to the Jana Gana Mana and to Nkosi Sikelel’i Africa not because we had to but because we were privileged to, inspired to, stirred from within our souls, to do so. Our anthem, that evening, was no song; it was a sensation. It was no verse, it was a voltage.
On August 15, 2007, the 60th anniversary of Independence, Kolkata marked the date like the rest of India. That city was where on that day, 60 years earlier, the last British governor of Bengal, Frederick Burrows left. But Calcutta, as it then was called, tensed into communal warfare. Gandhi, shunning the celebrations in Delhi, positioned himself at the heart of Calcutta’s fire to quench it. His extraordinary intervention, made dynamic by a fast, brought the flames down and showed the power of India’s secular choice over sectarian madness. If on that day, Jana Gana Mana had been declared the national anthem and played, would Gandhi have stood for it? Of course he would have.
Gandhi recognised its power and pulsation years before it was even considered as a future anthem. It was included in the Bhajanavali that his ashram in Sabarmati compiled. Gandhi knew his Jana Gana Mana as he did Bankim’s Vande Mataram (written in 1882, first sung in a political setting in Calcutta in 1896) and Iqbal’s Sare Jahan Se Achha (written in 1904, sung by the poet the following year in Lahore). But would he have said the anthem should be made compulsory? “Compulsory?†he may have asked. “Have we substituted ‘God Save The King’ by Gurudeva’s great song?†And we would have heard a pained laugh from the 78-year-old. Sixty years on, on August 15, 2007, the veteran Communist Jyoti Basu and Siddharth Shankar Ray, the vintage Congressman stood with chief minister Buddhadeb Bhattacharjee, “Tava subha asis maage†, and with some of us, eyes misted over, not because they were required to but because it could not be otherwise. The anthem was us, we were the anthem.
Standing for the national anthem is a “sign†of respect. But more importantly, it is the mark of a relationship. The anthem starts with “jana†, the people. And it talks of the jana’s mana, that is, the people’s minds. It does not talk of the nation-State, the government, its laws and rules. The adhinayak and Bharat bhagya vidhata in the song have been the subject of endless discussion. Who or what did Tagore have in mind with those phrases? And that discussion, in a democracy, is to the good. But now that the song is the anthem of a Republic, those phrases should be contextualised afresh and seen to represent the collective ethos of the jana, their mana, their moral integer. Our anthem and our flag have a relationship with us, and we with them, which is not is a matter of the regulated mind but the kindled soul.
The full, unexpurgated “jana gana mana†song has a passage which, understandably, is not part of the official text: “ghora timira ghana nibida nishithe, pidita, murchita deshe, dushapne, atanke, rakha karile, snehamayi tumi mata†. Translated roughly the words mean†“from darkness deep and dense, from the ink-black of night, from its pained, suffering, unconscious, nightmared, terrorised state, save my land, kind-hearted Mother†.
Those who want to make love of India a matter of obedience, respect for the motherland subject to verification, inspection and certification, should ponder the excised words of the song that brood over its official version.
Gopalkrishna Gandhi is distinguished professor of history and politics, Ashoka University
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Hindustan Times - 2 December 2016
SC order on national anthem in cinema halls mirrors aggressive hyper-nationalism
by Harsh Mander
In a stinging blow against individual liberty, India’s Supreme Court made it mandatory for all cinema theatres to play the national anthem before the start of every film. ‘A time has come’, the learned judges declared, when ‘the citizens of the country must realise that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism…’.
This obligation, India’s highest court held, is imperative for advancing ‘the love of the motherland’. I recall an article I wrote in great anguish days after witnessing the brutal communal massacre that was unfolding across Gujarat in 2002. I declared at that time, ‘There is much that the murdering mobs in Gujarat have robbed from me. One of them is a song I often sang with pride and conviction. The words of the song are: Sare jahan se achha, Hindustan hamara…It is a song I will never be able to sing again’. I titled my lament ‘Cry My Beloved Country’.
I believed then, as I do now, that there are many ways of loving my country. One of these was to refuse to sing my country’s praises. I chose that way in a moment of profound collective moral and political failure, as the blood of innocent children and women flowed on the streets.
This ruling of India’s highest court, carrying the weight of law, troublingly mirrors the aggressive hyper-nationalism that is sweeping the country today. In this discourse, the nation, its leader, the government and the country’s religious majority all converge. Opposition to majoritarian politics and vigilantism, as much as dissent with central government policy and criticism of the Prime Minister, are all painted alike as impermissible disloyalty to the nation.
This applies equally if you oppose military action against young stone-throwing teenagers in Kashmir that fells and blinds them, as if you contest the official adventurism of declaring overnight 85 percent of the country’s currency worthless, uncaring of the pain to India’s impoverished millions and the inability of this measure to actually erase the bulk of the country’s black money. This dissent, or any other, is depicted as disagreement not with a political ideology or government but rebellion against the nation. In one fell swoop, leftists, liberals and the country’s many minorities are all coloured as anti-national. They merit therefore an unending volley of trolls, abuse, expulsion from official public and cultural spaces, and sometimes, as with left-leaning university students, jailing and punishment for the high crime of sedition against the nation.
If you complain about people forced to spend hours in line to draw their money, you are reminded about the sacrifice of soldiers in the country’s borders, as though railing against what you may see as a poorly conceived and ill-prepared drastic government measure with unacceptably high human costs is unpatriotic. On the other side of this same spectacle of faux nationalism, the body of a man who dies in prison — after being jailed and tried for participating in a lynch mob which cruelly killed a man on the rumour that he had killed a cow — is wrapped in the country’s national flag in the presence of a Union minister.
This is the intolerant majoritarian ideological architecture to which the country’s highest judges have gratuitously contributed the legitimacy of law. Their ruling breaches individual freedoms.
Love for one’s country cannot be reduced to a ritual adherence to symbols, more so when these are coerced by law and vigilantism. No court or law can prescribe conditions that I must adhere to in order to belong to the nation, no obligation to publicly demonstrate love for the nation. To love your country cannot be reduced to standing for the national anthem. Instead, it means standing up for justice, for truth, for kindness. It means indeed the obligation of public dissent, of standing in solidarity with the oppressed, of speaking truth to power.
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Pouring supreme scorn on liberty
by Nitin Pai
The Supreme Court must not hold in contempt what it is mandated to uphold
At first glance, today’s Supreme Court ruling making it mandatory for cinema halls to play the national anthem before screening movies, and requiring cinema-goers to stand up while it is being played, can be seen as yet another decision that appears more whimsical than grounded in Constitutional principle. Instead of refusing to waste its precious time hearing unimportant petitions from self-righteous busybodies who seek to impose their norms on the whole country, the Supreme Court has entertained many such, and created incentives for people to waste the Court’s time, and the citizens’ peace.
But a comment made by the Bench—perhaps revealing the rationale for the decision—should make us sit up and take notice:
When the national anthem is played it is imperative for everyone to show honour and respect. It would instill a sense of committed patriotism and nationalism…Time has come for people to realise that the national anthem is a symbol of constitutional patriotism…people must feel they live in a nation and this wallowing individually perceived notion of freedom must go…people must feel this is my country, my motherland. [LiveLaw emphasis added]
The Supreme Court just dissed individual liberty!
The bench sneered at one of the pillars of the Indian Constitution. Troubling as it is, more than the ruling itself we should be concerned that India’s highest judges think this way, and think nothing of expressing it this way. The Supreme Court is, after all, the ultimate guardian of individual liberty. It gets this responsibility from no less an authority than the Constitution of India. Citizens will be justified in wondering if the Supreme Court can discharge this assigned responsibility if it harbours such cynicism or disdain for individual liberty.
Legal scholars will no doubt cite scores of High Court and Supreme Court judgements that are unambiguous on the matter. Except when “individual liberty comes into conflict with an interest of the security of the State or public order†, individual liberty is supreme. It would be stretch to argue that people not standing up for the national anthem presents a scintilla of risk to the national interest. Indeed, India’s security or social order has suffered little damage from people not standing up for the national anthem in cinemas from 26th January 1950 till date. The judge’s words do not have a force of law, but to the extent they reveal thought processes, we have to worry.
It is bad enough for the Supreme Court to scorn individual freedom. To do so on an issue as unserious and arbitrary as what should be done at cinema halls is terrible.
Tailpiece:
Our emergency at the moment has perhaps led us toforget that if we do not give that scope to individual liberty, and give it the protection of the courts, we will create a tradition which will ultimately destroy even whatever little of personal liberty which exists in this country. [K M Munshi, Constituent Assembly, 6 December, 1948]
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Jana Gana Mana and the Danger of Passing Sentiment as Law
by Lawrence Liang
It is clear that the law requires an active act of disturbance to constitute an offence, but does it include a quiet refusal to stand for the national anthem?
Screenshot from Kabhi Khushi, Kabhi Gham when the Indian national anthem is being sung
This is clearly the winter of Karan Johar’s discontent. Barely had the controversy over the illegal fine imposed on him by the Mahrashtra Navnirman Sena died down when the ghost of a controversy about his earlier film, Kabhi Khushi Kabhi Gham (K3G), has resurfaced in the form of the mind-boggling order from the Supreme Court making it mandatory for the national anthem to played in cinema halls before the screening of a film:
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.
Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.
When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.
The national anthem is “the symbol of the Constitutional Patriotism and inherent national quality†, the judgment says. “It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. (sic) The idea is constitutionally impermissible.â€
The order by Justices Dipak Misra and Amitava Roy is a follow up to an earlier Madhya Pradesh high court judgment (also delivered by Dipak Misra) delivered in response to a case filed by the same petitioner in Shyam Narayan Chouksey v. Union of India.
Chouksey, who had gone to watch K3G, had been dismayed to find that the audience in the film did not stand up in the scene when Shahrukh Khan and Kajol’s son in the film sings the national anthem. Chouksey, a member of Jeevan Jagriti Prayas, an organisation for the “inculcation of national spirit amongst people†, urged the audience to stand up but to no avail, after which he approached the management of the theatre and subsequently the DGP of Madhya Pradesh. He even had pamphlets published informing people that the national anthem would be played during the film but when that didn’t work, he did what a number of indignant citizens increasingly do: approach the court for relief. And the high court ruled that “the film shall not be shown in any theatre unless the scene which depicts the national anthem is deleted†.
In a judgment that is an utter delight for people interested in the curious relationship between law and cinema, but would be less enthusiastically embraced by those looking for constitutional principles, the high court bench (Dipak Misra and A.K. Shrivastava, JJ.) used the opportunity presented before them to hold forth at large on everything under the sun – from cinema to theories of spectatorship and of course musical patriotism. A particularly interesting contention was whether a difference should be made between the audience of the anthem in the film and those of the film and what the relationship between the two is. But interesting as this is from a law and cinema perspective, let us return to its constitutional consequences.
In Bijoe Emanuel (1987), the Supreme Court had an opportunity to consider a similar question that arose from the suspension of three students from a school for refusing to sing the national anthem as it went against the tenets of their faith (they belonged to the religious group called Jehovah’s Witnesses). The court, in its decision, overturned their suspension on the grounds that the right to freedom of speech and expression included the right to remain silent. They held that while the students did not join in the singing of the anthem, they had not showed any disrespect since they stood up along with the other students. In the operative part of the judgment, Justice Chinnappa Reddy says
“Now, we have to examine whether the ban imposed by the Kerala education authorities against silence when the national anthem is sung on pain of expulsion from the school is consistent with the rights guaranteed by Articles 19(1)(a) and 25 of the constitution. We may at once say that there is no provisions of law which obliges anyone to sing the national anthem nor do we think that it is disrespectful to the national anthem if a person who stands up respectfully when the national anthem is sung does not join the singing.
“It is true Article 51-A(a) of the constitution enjoins a duty on every citizen of India “to abide by the constitution and respect its ideals and institutions, the national flag and the national anthem.†Proper respect is shown to the national anthem by standing up when [it] is sung. It will not be right to say that disrespect is shown by not joining in the singing. Parliament has not been unmindful of ‘national honour’.
“The Prevention of Insults to National Honour Act was enacted in 1971. While s. 2 deals with insult to the Indian national flag and the constitution of India, s. 3 deals with the national anthem and enacts, “Whoever, intentionally prevents the singing of the national anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which extend to three years or with fine, or with both.â€
“Standing up respectfully when the national anthem is sung but not singing oneself clearly does not either prevent the singing of the national anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in s. 3 of the Prevention of Insults to National Honour Act.â€
To my mind, a key aspect of the Bijoe Emanuel judgment is the the framing of the question about whether people can be forced to sing the national anthem ‘on a pain of expulsion’ and whether that is consistent with fundamental rights.
Law v. opinion
In a case that pits compulsory affection against the beliefs of a group, the judges hold in favour of the latter and locate their decision within the right to freedom of speech and expression. The consequences of this judgment are extremely significant, particularly at a time when the executive is hell-bent on criminalising any form of dissent, and Bijoe Emanuel is one of the few safe spaces in which conscientious objectors in India could potentially have found safe refuge. Justice Reddy made a clear distinction between fundamental rights and fundamental duties and held that a fundamental right can only be limited in accordance with law and not through mere ‘executive or departmental instruction’.
While Justice Dipak Misra’s latest order is clearly not an executive or departmental instruction, Gautam Bhatia makes a compelling case for what he describes as ‘judicial censorship’. He argues that there is a need for constancy and that the Supreme Court cannot have it both ways – i.e. simultaneously equate judicial opinions to “law†under Article 19(2), even as it insulates itself from its decisions then being challenged in writ proceedings for violating Article 19(1)(a) of the Constitution.
The key difference between the Bijoe Emanuel judgment and the interim orders passed in the current case is the emphasis in the former on legal reasoning and its restraint in passing off sentiment as law. Because this is exactly what the present order and the Madhya Pradesh judgment preceding it effectively is: capricious personal sentiment expressed from the highest pulpit available to any Indian citizen. It is also indicative of a much more disturbing trend, evidenced for instance in Justice Pratibha Rani’s bail order in Kanhaiya Kumar’s case – where she grants Kanhaiya bail but also provides him a free lesson on viral infections and gangrene, amongst other things.
This affective surge and surplus in judicial opinions is not entirely new (we know for instance that Justice V.R. Krishna Iyer was never short of words), but its increase in volume (in both senses of the word) does indicate a disturbing trend where generic personal opinions mutate into obiter and finally into ratio, and often become the operative rhetoric of what is reported and discussed in the media.
We also need to note that the orders come about in a time when we are witness to a massive mediatisation of law – where legal events are also ‘media events’ circulating within the spectacular economy of the media. In that sense they are both constituted by and compete with forms of public address that the media deploys. This new form of judicial populism has serious consequences for how we think about procedure, the rule of law and justice. Sample for instance the verbal and juridical excess contained in the MP order (Para. 22):
National Anthem is to be sung with magna cum laude and nobody can ostracise the concept of summa cum laude. In the case at hand, as we have noted earlier the son of the protagonists sings the national anthem as a surprise item. The presentation, according to us, is in medias res. The child actor forgets the line and utters the term “sorry†. To some it may appear lapsus linguae, slip of the tongue or a natural forgetting but if the whole thing is perceived, understood and appreciated in complete scenario, it is the script writer’s fertile imagination and the Director’s id est. It is deliberate. A deliberate slip of the pen. It is because there is in a way, deliberation to project a dramatic effort to show that the scene depicted in the film is on an absolute terra firma. The writer and director have totally forgotten that they were portraying the national anthem of a great country.
In ‘Shashtras’ this great country has been described as under :
‘ASMAD DESHA PRASUTASYA
SAKASADAGRA JANMAMAH
SWAM SWAM CHARITRAM SCHIKSERAN
PRITHIVYAM SARVA MANAVAN.’Not for nothing, in one of the ancient epics of India it has been so said :
‘API SWARNAMAYI LANKA NA ME ROCHATE LAKSHMAN JANANI JANMA-BHUMISCHA SWARGADAPI GARIYASI.’
They have not kept in mind ‘vox populi, vox dei’. The producer and the director have allowed the national anthem of Bharat, the alpha and omega of the country to the backseat. On a first flush it may look like a magnum opus of patriotism but on a deeper probe and greater scrutiny it is a simulacrum having the semblance but sans real substance. There cannot be like Caesar’s thrasonical brags of “veni, vidi, vici.†The boy cannot be allowed to make his innocence a parents rodomontrade, at the cost of national honour. In our view it is contrary to national ethos and an anthema (sic) to the sanguinity of the national feeling. It is an exposition of ad libitum.â€
To the litany of Latin phrases, all one can add is res ipsa loquitur. The MP high court order was overturned by the Supreme Court in 2004 on the grounds that government instructions explicitly noted that when “the national anthem is exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is not expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the national anthem.â€
From K3G, let’s return to Bijoe Emanuel to examine an implicit, even if unstated, premise. The court does not explicitly examine whether in addition to remaining silent, a refusal to stand up falls outside the scope of protectable speech and expression under Article 19(1)(a) of the constitution. To my mind, the crucial question is based on how we understand the phrase “expression†. Debates on free speech often focus on the speech element ignoring the expression element, but if the right to free speech includes the right to remain silent then would not a free expression include a non action? Let us recall that Section 3 of the Prevention of Insults to National Honours Act says:
“Whoever intentionally prevents the singing of the 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.â€
It is clear that the law requires an active act of disturbance to constitute an offence, but does it include a quiet refusal to stand for the national anthem? The reasons motivating an expression may be varied. A person may be critical of nationalism. Or she may disagree with the enforced display of patriotism. In this regard they would not be alone, and would find ironic support in the form of the author of the national anthem itself.
Rabindranath Tagore, despite being the “national†poet and the author of the anthem, was himself highly critical of nationalism especially in its overt forms, and retained in his writings and his significant lectures on nationalism the sovereignty of an individual’s political and ethical views. Historian Ramachandra Guha describes Tagore as a patriot who was not quite a nationalist and as someone who was dismayed by the “xenophobic tendencies of the nationalist movement†.
Tagore’s universalism came out of a civilisational confidence and seems to be in sharp contrast with the knee-jerk responses of indignation whenever anyone expresses their dissent.
It might be worth recalling the words of our national poet as a way of thinking about the philosophical consequences of what a truly free expressive ideal may be:
I have heard it said again and again that we are guided altogether by history, and I have energetically nodded, so to say, in my mind whenever I heard it. I have settled this debate in my own heart where I am nothing but a poet. I am there in the role of a creator all alone and free. There’s little to enmesh me there in the net of external events. I find it difficult to put up with the pedantic historian when he tries to force me out of the centre of my creativity as a poet.
Lawrence Liang is a Bengaluru-based legal scholar who has written extensively on law and rights. He is currently teaching at Yale University, Connecticut.
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Indian Constitutional Law and Philosophy - November 30, 2016
The Illegality of the Supreme Court’s National Anthem Order
by Gautam Bhatia
In an order dictated today, a two-judge bench of the Supreme Court, headed by Dipak Misra J., directed all cinema halls across the country to play the national anthem before every film, along with the Indian flag on the cinema screen. The Court then directed cinema-goers to stand up to “show respect†while the anthem was being played, and – apparently upon a suggestion from the Attorney-General – that the doors of the cinema hall be locked while the anthem was being played. A number of other rather vague “interim reliefs†were also granted.
What passes for “reasoning†in this “order†ought not to be dignified with legal analysis. I will say no more about it. And the case for the opposition can scarcely be better made than Justice Jackson’s opinion in West Virginia vs Barnette. However, there is a deeper issue that goes beyond the behaviour of this particular bench of the Supreme Court, and merits some examination. This is something that I have referred to before as “judicial censorship“. Judicial censorship is suo motu judicial action restricting the freedom of speech, in the absence of an existing law. In my view, judicial censorship is not contemplated by the Constitution, and judicial orders that engage in this form of censorship are illegal and void.
[. . .]
Full Text here: https://indconlawphil.wordpress.com/2016/11/30/the-illegality-of-the-supreme-courts-national-anthem-order/
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The National Anthem and the Supreme Court’s Popcorn Nationalism by Bhairav Acharya http://thewire.in/83910/the-national-anthem-and-the-supreme-courts-popcorn-nationalism/
Anthem Verdict: Door closed? In Uphaar, Supreme Court said don’t http://indianexpress.com/article/india/india-news-india/anthem-verdict-door-closed-in-uphaar-supreme-court-said-dont-4404173/
