SC’s National Anthem order: The seven commandments of ‘constitutional patriotism’

In an interim order delivered by the Supreme Court on 30 November in the Shyam Narayan Chouksey v. Union of India (2016), the final word seems to have been spoken on how the National Anthem is to be bestowed the respect and reverence it is worthy of. Authored by Justice Dipak Misra, this order ensures that while the National Anthem might stand adequately "respected", the expectation of reasoned judicial orders will quiver in a corner.

By no means is this the first time courts have been faced with emphatic assertions of respect for the anthem. In 2014, the Calcutta High Court heard a certain Kamal Dey about how certain schools/institutions were not complying with the Prevention of Insults to National Honour Act, 1971 (1971 Act) by not encouraging and starting their days’ work with community singing of the National Anthem. The High Court responded to this plea by directing the Central government and state government to ensure that educational institutions strictly follow the orders pertaining to the National Anthem. The Ministry of Home Affairs (MHA), in turn, compiled several instructions issued on the use and playing of the National Anthem into one consolidated orders’ document, which was issued to all government machineries on 5 January, 2015. In March, 2016, the MHA issued an advisory for strict compliance with these orders. The orders as well as the advisory pertinently leave it to the “good sense” of the people not to indulge in indiscriminate singing or playing of the anthem.

Representational image. AFP

Representational image. AFP

The 1971 Act merits some attention here, even if it did not with Justice Misra. Section 3 of this Act punishes a person intentionally preventing the singing of the National Anthem or causing of disturbance to any assembly engaged in such singing. The punishment could be 3 years’ imprisonment, or fine, or both. Back in 1986, the Supreme Court held in Bijoe Emmanuel v. State of Kerala that standing up respectfully when the National Anthem is sung but not singing oneself does not violate Section 3 of the 1971 Act. This judgment is as categorical as it gets in saying that NOT singing the national anthem is as acceptable as singing or revering it.

The one bit of law that Justice Misra does rely on is the fundamental duty of every citizen under Article 51A of the Constitution to respect the National Anthem. He also enlists seven directions, which I call the 'seven commandments of Misra J', on how to steer clear of controversies where the National Anthem is concerned. Some thoughts on each of these commandments:

- Thou shalt not commercially exploit the National Anthem – The National Anthem is not to be exploited commercially to give financial advantage or any kind of benefit. Soon after having said this, Justice Misra veers away from explaining the contours of "commercial exploitation" or "commercial benefit". It is worthwhile to contemplate what a purely "commercial" use of the national anthem would be; one discernible commercial use can be in movies, television dramas, radio programmes, or commercial advertisements. Now, the Court’s commandment is hard to decipher in two ways — first, none of these uses of the national anthem will be strictly commercial — the commercial advantage would be reaped from the numerous other aspects that go into the movie, and not the National Anthem itself, so to speak; second, and in case the target here is to completely prohibit the use of the National Anthem in movies and dramas, would this would not be an unreasonable restriction on the right to freedom and speech and expression of the movie-maker? What justifies this blanket prohibition on contextually using the National Anthem in a movie, or anywhere else? One wonders.

The purported violation of the freedom of speech and expression would equally apply to anyone wanting to make a rendition of the National Anthem at, say, a public gathering or on the Internet. Have we not heard several soulful renditions of the national anthem by renowned singers from across India? Does this order unnecessarily tighten the noose on all such creative expressions of the National Anthem?

- Thou shalt not dramatise the National Anthem – This possibly relates to each time our movies have tried to evoke patriotic fervour by using the anthem as a plot point. This has never gone down well with Justice Misra, as is evident from an order given by him as part of a Division Bench of the Madhya Pradesh High Court. Fortuitously, the petitioner was the same Shyam Narayan Chouksey who found that in the 2003 movie Kabhi Khushi Kabhi Gham, the National Anthem had been dramatised and irregularly played. Justice Misra agreed with him to say that dramatisation of the National Anthem is against the "constitutional philosophy" and that the movie shall not be shown in any theatre unless the scene depicting the National Anthem is deleted. To the good fortune of the movie-makers, the Madhya Pradesh High Court order was set aside by the Supreme Court in Karan Johar v. Union of India (2004). 12 years later, Justice Misra seems to have had his way!

- Thou shalt not display the National Anthem disgracefully – Before Justice Misra resorts to its disgraceful display, he says that the National Anthem or any part of it "shall not be printed on any object". I remember my school daily diary reproducing the National Anthem and the national song on its initial pages — is the diary an “object”? Will the anthem have to make a sad exit from my school diary? What would amount to “disgraceful” to the “status” of the National Anthem?

- Thou shalt not entertain thyself without respecting the National Anthem – The heaviest burden of revering the anthem has been placed on cinema hall owners as well as cinema-goers. While cinema halls have to compulsorily play it, the audience are obliged to stand and “show respect” to the National Anthem. But what about the judgment in Bijoe Emmanuel? Why is one expected to explicitly show respect if one does not indulge in clear disrespect? What about that valuable right to freedom of speech and expression under Article 19(1)(a) of the Constitution?

- Thou shalt spend thy existence to ensure that no disturbance is posed to playing of the National Anthem – Cinema halls have surely not been let off easy! Abundant caution has to be displayed while playing the anthem — doors should remain closed while the anthem plays, and can be opened only once it is over. On the face of it, an issue of logistics. Scratch the surface and we unearth an attempt being made to enforce patriotism.

- Thou shall have the anthem in the background, and the flag on the screen (and, well, patriotism in the heart) – Since it is reasonable to expect that the five commandments above would have instilled sufficient patriotism in the subjects, time is ripe to channel this feeling to the other symbol of national honour — the flag. Thus, cinema halls have also to display the flag on the screen when the National Anthem plays.

- Thou shalt not play or display the abridged version of the National Anthem – To complete the trail of trampling upon the individual liberty of anybody wanting to use it, the order ends with a blanket ban on the use of any abridged version of the National Anthem. Curiously, the Orders Relating to the National Anthem of India (referred above) duly recognise that a short version of the anthem, comprising the first and last lines and lasting about 20 seconds, shall be played when "drinking toasts in messes"! Does this purportedly permissible abridgment of the anthem no longer apply?

Admittedly, identifying a credible legal backing or legally analysing this order is an uphill task. The 1971 Act does not envisage any of the restrictions on the use of the National Anthem as commanded by Justice Misra. In any case, the position regarding the 1971 Act has been abundantly clarified in Bijoe Emmanuel. The curtailment of the right to freedom of speech and expression by this direction of the Supreme Court is entirely a product of judicial fiat - it is neither a reasonable restriction of the kind allowed under Article 19(2) nor backed by any law enacted by Parliament. Evidently, the Supreme Court, the purported defender of personal liberty, did not deem fit to explain itself when making grave inroads into individual liberties.

No wonder then that Justice Misra finds refuge in fancy phraseology such as “constitutional patriotism”, “committed patriotism and nationalism”, and “inherent national quality” to give some semblance of reasoning in this order. As a self-appointed guardian of something that is capable of evoking patriotic fervour, the Supreme Court has set a dangerous precedent this time. While we were constantly irked by one organ of the State trying to enter our living rooms, another organ has, rather conspicuously, entered public spaces that we frequent as a matter of choice.

The writer is a Research Fellow at the Vidhi Centre for Legal Policy. Views are personal

Updated Date: Dec 01, 2016 15:52 PM

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