The interim order of the Supreme Court of India in the National Anthem case is a mockery of the judicial process and the Constitution.
The travesty of forcing people to stand up for the National Anthem in a private setting has been highlighted here, here and here. The larger illegality of such an order apart, the directions themselves are silly and unimplementable, suggesting a lack of thought on the part of the court or concern for the law. This piece will try to parse the directions and what they mean.
Remember, none of these directions have any statutory backing. There is no law which is being implemented, nor are any fundamental rights being violated in the absence of such a law. That, however, does not stop the court as it assumes for itself the role of the legislature, executive and judiciary in one go, claiming an extra-constitutional power that is the hallmark of absolute tyrants.
The first direction is “there shall be no commercial exploitation to give financial advantage or any kind of benefit”. If that were not clear enough (it isn’t), the court adds that the “National Anthem should not be utilised by which (sic) the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.” This “clarification” only raises further questions: Is it acceptable to refuse to pay a person for singing/performing the National Anthem? Are all copyrights of an artiste performing the National Anthem automatically void?
Now that the Supreme Court has said that fundamental rights and freedoms are “constitutionally impermissible” when it comes to the National Anthem, does that mean that the prohibition against forced labour (under Article 23) or the right to property (under Article 300-A) are no longer enforceable? We don’t know and state governments being free to interpret this as they choose, so good luck enforcing any fundamental rights you may have.
The next direction goes even beyond the Prevention of Insults to National Honour Act, 1971. No film, drama or show of any sort can have the National Anthem as part of the show. This is the clearest indication that Justice Dipak Misra is peeved that the Supreme Court had the temerity to overturn his earlier decision banning Kabhi Khushi Kabhi Gham for having played the National Anthem in the film, and has now decided to make this law for the whole country, the rights and precedent be damned. Move aside, Cinematograph Act, 1952 and the Central Board for Film Certification, there’s a new super censor in town and there’s no appeal from its orders.
Next, Justice Misra effectively prohibits the publication of a copy of the National Anthem or even specific words of the anthem. This is of course the logical conclusion of a direction which says “National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect.” The next line is a total non sequitur and despite reading it multiple times I have not been able to make any sense of the words “the concept of protocol associated with it has its inherent roots in national identity, national integrity and Constitutional patriotism.”
The clearest direction is the next one. It issues a grand proclamation, like the firman of a Nizam, that all theatres must play the National Anthem before the feature film starts and all citizens, whether they be old, infirm, physically challenged, or just tired, must stand for the National Anthem. How it expects to enforce this direction the court does not say so. It may not know. Or possibly care. Perhaps it intends to leave it to “patriotic” citizens, free to use any means necessary at their disposal, to instill patriotism in their fellow old, infirm, physically challenged or just tired citizens.
In the next direction, demanding that entry and exit doors be closed while playing the National Anthem, the Supreme Court ignores its own earlier judgment in the Uphaar tragedy case where the court, for good reasons, had held that under no circumstances should doors to a cinema be shut from the outside. Perhaps it should be considered that unlike laws written by institutions, the laws of physics can’t be suspended or struck down by a judicial order, and if a fire breaks out, all the patriotism in the world won’t save you from a horrible death in a closed room.
The last direction, that the abridged version will not be played, ignores the Home Ministry order which specifies the occasions where it might be played. This is a minor technicality and given that the government was only too happy to have the court legislate entirely new norms, it should have no difficulty in changing its orders.
There is no logical reasoning or law cited to justify any of these directions. They have all been made on the pure say-so of a judge, with the collaboration (if not the urging) of the central government. When anyone in the government next complains about “judicial over-reach”, perhaps this order should be pointed out to them. Here, the government has willingly abdicated its responsibility and powers. At no point does the Attorney General even resist the suggestion that the court should pass these orders. At no point does anyone question the court on the wisdom of its actions. Perhaps the central government was aware that it had no powers to enforce the singing of the National Anthem in private spaces but preferred to collude in getting a judicial diktat issued for the same. We can never know for sure but such collusion only works to shake the faith of the independence of the court as an institution.