Introduction
Rabindranath Tagore would have never imagined that his composition would have become such a debatable issue. The contention behind Bharato Bhagyo Bidhata was to bring countrymen under one flag by putting aside their differences. The first stanza of Bharato Bhagyo Bidhatha is the national anthem of India.
It has become the sixty-four thousand dollar question after the SC passed the order that it would be compulsory to stand in cinema halls for National Anthem as a gesture of respect.
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However the issue must be debatedbeyond the characteristics of judicial order.As mentioned in the order, the Supreme Court has justified this mandate by stating that they are furthering a culture of “constitutional patriotism”. In doing so, the author analyses the reasoning of SCand argues that the idea of “constitutional patriotism” is misinterpreted and a misplaced understanding. Further, the author will apply the idea of “constitutional patriotism” to prove that Order lacks constitutional basis and is arbitrary. Lastly,an analysis of ancillary issues and judicial precedent leading to the present Order will be presented.
Explanation of the Case
Factual summary
The petitioner, Shyam Narayan Chouksey was member of certain social and spiritual organisations and has taken upon himself the burden to launch a campaign, in the name of the 'JeevnJagritiPrayas' .
As put forth, he went to watch 'KabhiKushiKabhi Gum',. While viewing the said movie the petitioner found that in a particular portion the National Anthem is sung.
To show respect Petitioner stood up but others remain seated even his standing up was objected by the people who were sitting behind him and in, fact, they complained of obstruction. As he could not swallow the hidden indifference, outright insult to the national honour and “commercial use of national anthem” he went to the authorities.
After finding no positive response he brought the matter to the notice of the functionaries of the local administration but it was of no use. After observing the sheer ignorance, the Petitioner filed a PIL in MP High Court in Jabalpur.
Procedural history.
Mr. Shyam Narayan Chouksey filed a Public Interest Litigation on 24 July 2003 in MP High Court under Article 226 of Indian Constitution. A Division Bench consisting JusticeDipakMisra& Justice A. Srivastava agreed with the contention and directed that the film shall not be shown in any theatre, unless the scene which depicts the Anthem is deleted. This order was later stayed.
The matter went in appeal to the SC. A 3-judge Bench consisting of Justice V N Khare, Justice S B Sinha and Justice S H Kapadia of Supreme Court allowed the appeal and set aside the order of the High Court. Then the Petitioner filed a review petition against the decision of SC. In the review, the Court noted that the questions of law arising in the case have “far reaching implications” and need to be considered by the Court.
The Court thus, recalled its 3-judge Bench judgment except to the extent concerning the certification of film. However, when the matter came up for hearing, Petitionerwas not represented in court. Hence, the Court disposed of the case while observing that the “questions of law would remain open”. The certification of the film as decided by the 3-judge Bench was maintained.
Same petitioner again filed a Public Interest Litigation in November 2016 in Supreme Court under Article 32 of Indian Constitution.On 30.10.2016 Supreme Court passed an order framing guidelines on playing of National Anthem and making it compulsory for viewers to stand up for national anthem as a sign of respect.
Issues
The case addressed the classic fight between two different discourses of patriotism i.e. either it should be promoted by state in a sphere such as entertainment industry or patriotism should be a feeling that should not be spoon fed but self-induced.
It has made a split between the individuals of the country. Defenders of the Order who come ahead of schedule to film lobbies contend that this will make a culture of devoted union in the Indian masses while pessimists who by and large come after National Anthem embrace the contention that singing out national song of praise in a space implied for excitement is despotic and non-reasonable which doesn't emerge any energy among the Indian masses.
The liberal side actively debates that India needs a culture of patriotism, not patriot-isation of culture. On the off chance that we have gone to a phase where theaters need to help us to remember the estimation of patriotism, the Indian framework has fizzled. In the event that our homes couldn't show us the privilege sanskars, if schools and their educational module couldn't impart in us the privilegedcivilisational values, and on the off chance that we now need to rely upon the cliché imagery of assimilating intensive lessons — a kind of constrained gathering treatment in patriotism before three hours of diversion can hardly help the cause.
Thereby, to resolve the issue or rather choose one of the sides, Supreme court gave this controversial judgment.
Arguments
Petitioners
- Petitioner under Article 32 or the Indian Constitution of India made a reference to the enactment, namely, Prevention of Insults to National Honour Act, 1971. It had the contention that sometimes the National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law. The emphasis is on showing requisite and necessary respect when the National Anthem case is sung or played. The assertion is that it is the duty of every person to show respect when the National Anthem is played or recited or sung.
- Citing the Fundamental Duties – It is the duty of every citizen of India –
- To abide by the constitution and respect its ideals and institutions, the National Flag and the national Anthem. From the aforesaid, it is clear that it is the sacred obligation of every citizen to abide by the ideals engrafted in the constitution. And one of the most important ideals is to show respect to national flag and national anthem. The petitioners claimed that the time has come that 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 and inherent national quality. It should not allow any different notion or the perception of individual rights, that have individually thought of have no space.
Respondents
- Standing for the National Anthem is meaningless if it’s mandated, and such a mandate undermines the essential liberty of free speech. The tenor of the order of the Indian Supreme Court implies forced patriotism, while such mandated displays of patriotism go against the very grain of freedom of expression.The expression of patriotism should be left to an individual’s personal choice and ought not to be dictated through a decree or any other means like a government order or law.
- The Court cannot sacrifice ‘individual rights’ at the altar of ‘constitutional patriotism’ While curtailing individual rights, the Court in its previous judgment has used terms like ‘constitutional patriotism’, ‘nationalism’ and ‘patriotism’ liberally throughout the order without enunciating the variance in their import. It has been argued that free speech and expression can be curtailed under Article 19(2) only by an existing law or a law made by the State and no other mechanism. In the absence of any law or constitutional provision to justify its actions, the Court cannot resort to ‘constitutional patriotism’ as a justification to encroach upon the freedom of speech and expression of people.
- Mandating the national anthem could spell disastrous consequences by giving teeth to self-appointed vigilantes looking to uphold the nation’s honour. There have already been several instances of such jingoism in the recent past which cause serious apprehensions regarding the enforcement and outcome of the Court order.
The laws applied
The Hon’ble Supreme Court referred to clause (a) of Article 51-A, fundamental duties occurring in Part IV-A of the Constitution. It read as follows:
“51-A. Fundamental duties. - It shall be the duty of every citizen of India - (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”
From the aforesaid, it is clear as crystal that Hon’ble Supreme Court wants to portray that every citizen of India has a sacred obligation to abide by the ideas engrafted in the Constitution. And one such ideal is to show respect to The National Anthem and National Flag.
Through the order the Hon’ble SC want to state that. a time has come, the citizens of country must realise that they live in a nation and they are duty bound to show respect to National Anthem which is the symbol of Constitutional Patriotism and inherent national quality.
The Hon’ble SC also portrays that they does not allow any different new notion or the perception of the individual rights, hat have individually thought of have no space. And this idea would be constitutionally impermissible.
Judgment& disposition
- In the Aforesaid case the Hon’ble Supreme Court directed that the following directions shall be scrupulously followed:
- There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.
- There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the pari: of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthemis absolutely inconceivable.
- 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. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.
- 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 Anthemis 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 abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.
- The directions were issued, for love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag. That apart, it would instil the feeling within one, a sense committed patriotism and nationalism. It is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag. The matter was listed for further hearing on 14.10.2017.
Discursive argument
Let’s make “the particular country” great again. The world is already divided by so many flags. There is a wave of jingoism in most of the part of the globe. According to UN, there is an eclipse over the democracies of the world and the politicians are using nationalism as a weapon to justify their arbitrary actions. Economists believe nationalism would be the reason for the next Great depression because the countries going back from there free trade agreements.
Tagore who composed the anthem was himself very critical of nationalism. Tagore believed it is a danger to humankind. He was a patriot and he also composed vande matram. He believed patriotism is an attachment to the motherland and its basic sentiment of Animals and Humans. He believed nationalism is more of an ideology, an ideology used by politicians to ignite hate among commons. Tagore wrote 4 national anthems and he was the only person in modern history that did so. Tagore in his essays showed great fears of Indian following the way of West.
The concept of nationalism comes from west. Where the population is mostly homogenous and the language is also similar.India is a country formed by communities. The men of India hasth multiple self and each self prioritises over the other. . Nationalism demands homogeneity, it calls for absolute priority but India has no traditional identity. The author sense of hostility against nationalism comes from the fact that nationalism is absolutely incongruent with the Indian civilization. Nationalism is against diversity and our nation has full of it.
The order given by Hon'ble SC of India is something that should not be processed by the general public. In the expressions of court, the residents 'are compelled by a solemn obligation to demonstrate regard to National Anthem' as the song of devotion is an 'image of protected enthusiasm'. The Court utilizes the expressions 'national character' and 'national uprightness' alongside 'established energy' without breaking down the significance and import of any of these terms.
This judgment arises many questions in the mind of the author. The first one is if a person watch a movie in Cinema halls does his nationalism decreases? If the individual keeps popcorn and soft drinks in his hands, will this be considered as disrespectful act towards the national anthem? Why the national anthem should be played in Cinema halls only, why not in parliament or before the arrival of a train on railway station (if it comes on time though)?
The court depended widely on Article 51(A) in its judgment. Article 51(A) states that It will be the obligation of each resident of India (a) to maintain the Constitution and regard its beliefs and organizations, the National Flag and the National Anthem. Article 51(A) is a piece of key obligations that is unenforceable and extensively built obligation. Through a progression of case laws in Indian Courts, unmistakably there is a commitment upon Hon'ble Supreme Court to adjust principal obligations against enforceable essential rights.
The Court has emphasised on the obligations of individuals and dismissed essential fundamental rights guaranteed by the constitution. The basic structure of constitution is more tilted towards the fundamental rights. In any case, the lawmaking body has neither systematized any obligation of regard nor specifies any such obligation anyplace in the Constitution Scheme. Hence without talk encompassing Scheme, nationalism pushed by the Hon'ble Supreme Court comes up short on the possibility of Constitutional Patriotism. Nationalism pushed by the Hon'ble Supreme Court comes up short on the possibility of Constitutional Patriotism. When we deeply study the legislative articles on which SC relied i.e. Article 51(A) and Prevention of Insult of National Honour, we can safely conclude that these condemn active unsettling influence in a gathering that is actively singing the national song which is very not quite the same as the positive obligation that the Hon'ble Supreme Court systematizes in its Judgment.
The SC doesn’t differentiate from active acts of disturbance and an inactive demonstration of silent in Bijoe Emmanuel case. The SC veers off from the position taken by the Supreme Court in Bijoe Emmanuel v. the State of Kerala.
The author believes that the Hon'ble Supreme court has just constrained others to show regard in a film lobby however this complement don't add any nobility to the national song as devotion in film lobbies are not the right spot to show regard.
When the judgment came, the author was in school and he believed the SC gave a revolutionary judgment. He was in illusion that nationalism is the solution of all his dear country’s problem. However, today the author believes that this judgment sparked jingoism in India and nothing else. Today media doesn’t ask questions to the government, people died in the lines of ATM’s when the government made legal tender illegal. The people who died were termed nationalist, “They died for the nation, they said”. I hope the person who said this would repeat the same on the demise of his loved one in similar conditions. The government has brought nation to the brink of recession and no one stands against the arbitrary orders of the government. People are lynched by the nationalists. Our country is in crisis and all this is happening after this judgment. The judgment opened the door of acceptance, acceptance to petty nationalism.
The writer remembers whenever the national anthem was played in school; there was a rush, an adrenaline rush. The feeling cannot be described in words. Today the feeling has faded away. An act of compulsion never creates true respect, it rather creates despise. And the judgment has created great dissatisfaction among the commons of our great nation.
Conclusion
India don’t have a political problem, the real problem is social. We are getting influenced by the philosophy of the west. We need to remind us again and again that Europe had racial and linguistic unity from the earliest time. They had no complications internally. They also have wars continuing among their neighbours. India has everything contrary to that. The issue should have been disposed off earlier and should not have reached the gates of SC even in the wildest dreams.
Petitioner had different intentions and the end result was different. The whole nationalistic narrative is wrong and should not have happened. The court needs to take a deep look into Constitutionalism Patriotism. The court risked the basic principles of constitution.
Summary
This case comment aims at analyzing the judgment of in the light of fundamental rights,1 fundamental duties and nationalism. The comment starts with the Introduction of the case and the roots of national anthem followed by brief introduction of the particular case followed by arguments of parties which includes the analysis. Then the ratio has been critically analysed by the author.
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