A legal overdose of patriotism

The Supreme Court’s national anthem order goes against the grain of the precedent set in Bijoe Emmanuel vs State of Kerala


Photo: AFP
Photo: AFP

The Supreme Court’s interim directions (in Shyam Narayan Chouksey vs Union of India) to play the national anthem in cinemas prior to the exhibition of movies have given rise to strong opinions. The order, which came to be passed in a public interest litigation, contains seven directions, most notably the compulsory performance of the national anthem prior to the exhibition of a movie in a cinema hall.

Each such direction carries the force of law and the possibility of proceedings for contempt of court or a prosecution under the Prevention of Insults to National Honour Act, 1971. This order has been stated by some to be an act of judicial overreach, a comment that requires deeper examination.

Negative sentiments are often expressed about the court’s inefficiency and lack of transparency. These are used to buttress a larger institutional objection to the courts disturbing a constitutional balance by passing judgements that take the colour of legislation or executive determinations.

The national anthem directions, with good reason, are taken as an instance to support and sustain such sentiments. Even prior to the Supreme Court issuing the present set of directions—two different high courts have shown the jurisdictional creep by public interest litigations on the issue of the national anthem.

In September 2014, the Calcutta high court in the case of Kamal Dey vs Union of India issued a direction to the Central and state government that educational institutions should strictly follow the, “Orders Relating to the National Anthem of India” (National Anthem Order).

The National Anthem Orders are not a judicial creation but in the form of guidelines compiled by the ministry of home affairs on when and how the national anthem should be played. Given they are guidelines, they are not creatures of legislation and hence should not result in any penalties. Quite simply, one could not be punished for disobeying them, if such disobedience does not also result in the breach of the Prevention of Insults to National Honour Act, 1971. Unmindful of this, the ministry of home affairs has by a covering letter dated 5 January 2015 complied with the Calcutta high court direction with the National Anthem Orders and dispatched it to various government ministries for enforcement. A cursory search reveals that such enforcement is sought from departments of tax, revenue, power—areas wholly unconnected from the grievance of the petitioner or the court’s directions limited to schools.

The Madras high court in March, while hearing the case of N. Selvathirumal vs Union of India, examined the same question and issued similar directions to state and Central government bodies and private schools. The order notes and makes reference to the, “Orders Relating to the National Anthem of India” pursuant to a counter affidavit filed by the Central Board of Secondary Education. The court even notes: “The stand of the authorities including the Union of India is that the National Anthem ought to be sung and is being sung. This is the stand of the Schools also.”

Such consistent agreement of the government with the court is also observed in the Supreme Court’s directions in the national anthem case. At two points in the order, the consent of the attorney general is recorded within it, first with respect to the substantive directions and second on their circulation to all government functionaries for enforcement.

It may be fair to caution that sometimes a government counsel’s acquiescence to court directions may be noted as positive consent. However, in the same breath, a critique that solely places the blame of judicial overreach on the judiciary also requires to be conditioned for the above noted reasons. In all these cases it appears from recorded orders that the state has in some respect made an invitation or failed to make any objection to the court to assuming jurisdiction.

Another element of commentary, albeit in the minority, seems to draw criticism of the Supreme Court for considering the validity of legislation or striking it down. Such criticism fails to appreciate the core function of a constitutional court.

The judiciary has generally been seen as a protector of liberties even when a well-intentioned law encroaches on to them. There is good reason for it and a ready example is provided by the case of Bijoe Emmanuel vs State of Kerala. In this case, the Supreme Court held that three schoolchildren being Jehova’s Witnesses were justified in their refusal to sing the national anthem.

The Supreme Court’s directions in the national anthem case directly cut against the grain of such precedent. The court has reasoned that “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. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible.”

Reaching such a conclusion, no specific provisions of law are cited except Article 51(A) that contains fundamental duties to be properly fulfilled by legislation—and is limited by fundamental rights. The Supreme Court can protect such rights only if it restrains itself, even when the government does not ask or demand any such restraint.

Apar Gupta is a New Delhi-based lawyer.

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