Wisdom Crux

Criminalizing Patriotism

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[Volume 2, Issue 6] – June, 2017

Author – Anuj Kumar, B.A.LLB (Hons), Dr. Ram Manohar Lohia National Law University, Lucknow.

Co-Author – Shivani Singh, B.A.LLB (Hons), Dr. Ram Manohar Lohia National Law University, Lucknow.

“Patriotism is not short, frenzied outbursts of emotion, but the tranquil and steady dedication of a lifetime.” – Adlai Stevenson II

There are 11 fundamental duties added after 42nd and 86th Constitutional Amendment under part IVa (Article 51) of the Constitution of India. Part (a) of Article 51A mention that 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.((Article 51A, Part[a]))

India is the world’s largest democracy and this quest to keep the word “democracy” on the top pedestial has always been the task of every organ of the Government, be it executive, legislative or judiciary.What better source of democracy can be cited in place of our Constitution. Article 19(1)(a) mention right to freedom of speech and expression.But in recent years this right has to somewhat become a mere mockery on the part of the judiciary. Be it national anthem judgement, kanhaiyakumar’s case or any other order by the court which is arbritrary and more dangerously has a dangerous force of sentiments steering it.

Respect of the national flag is something which is an inherent part of our constitution. Respect for the country is not something related to the constitution only, it extends to social and cultural aspect of people’s life as well. But does enforcing fake ‘patriotism’ and feeding on people’s sentiments justifies itself in the name of the Constitution ?

NATIONAL ANTHEM AND NATIONAL HONOUR

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.The idea is constitutionally impermissible.”((Writ Petition(s)(Civil) No(s). 855/2016)) Further to add up to the misery, the court laid down ‘guidelines’ on how handicapped people should behave in order to ‘respect’ the national anthem.

This order by Justice Dipak Misra can be traced back to his times when he was a Judge in Madhya Pradesh High Court, when in one of the cases came the question of people not standing in one of the scenes in ‘KabhiKhushiKabhi Gum’ movie.The screening of the movie was suspended until the scene showing the national anthem was supposed to be deleted. This order of Justice Dipak Misra was set aside in Karan Johar v. Union of India(([2004] 5 SCC 127)), by the Supreme Court stating “We are satisfied that in view of the instructions issued by the Government of India that the national anthem which 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.”

Recently on 14th February, 2017, the earlier writ petition was reviewed and the court stated that although it may not be mandatory to stand on national anthem which is played between the screening of the movie, it is still imperative to stand on national anthem which is supposed to be played in the starting of the movie.This approach of the court has been highly criticised by people solely on the reason that it forces patriotism on the people, rather than doing things for the betterment of the country. In this age of advanced social media where as simple as thing of a gorilla being killed spread faster that wildfire, the parasitic politics feeding on sentiments of the people is at a new peak.

This debate on nationalism all sparked after JNU incident, where the leader of student politics was arrested for indulging in anti-national politics. Since then, the government has made every effort to spark the feeling of ‘nationalism’ and ‘patriotism’ in the people, be it a matter of free thinking or forced opinions.

LAW VS. OPINION

In Bijoe Emanuel v. State of Kerala(([1986] 3 SCC 615)), the Supreme Court had a prospect to consider a analogous 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.Whenever there exists a right, there also exists a right contrary to it. For example if right to freedom of expression and speech exists, there also exists a 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, “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 Section 3 of the Prevention of Insults to National Honour Act, 1971.”

The key aspect of the judgement is the question about whether people can be forced to sing national anthem ‘on expulsion of pain’ or whether it is consistent with the fundamental rights. The consequences of this judgement are extremely significant, particularly at a time when the government is adamant to any form of dissent.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.((Lawrence Liang, Jana Gana Mana and the Danger of Passing Sentiment as Law, The Wire(1-12-2016), https://thewire.in/83606/jana-gana-mana-dangers-passing-sentiment-law)) To poke the egoistic and sentimental approach of the court the BJP spokesperson filed a plea in Supreme Court to play national anthem in courts. The court declined the plea and said “Whether right or wrong, our order should not be overstretched. Bar should show some retrain.” ‘Overstretched’ would have had some vocabularic value if the court would have abided to it in the first place. In the time, when the whole politics revolve around beef and anything which disagrees with the government is handed a certificate of being anti-national and given a ticket to Pakistan, the use of a thing as sacred as a national anthem is just taking it a bit too far.

In Goa in October last year, writer SalilChaturvedi didn’t stand up for the national anthem. He was assaulted by a couple from behind. The guardians of nationalism who beat him didn’t know he suffered from a spinal injury that prevented him from rising on his feet.Chaturvedi is an award-winning disability rights activist. This was cleared out later by the court, that people with disability need not stand. But to what extent the court can control the mentality of the people who just go on with the sentiments of the majority. Anyone, be it whatever problem they have, needs to stand, if they don’t, they’ll be arrested. In December, last year, a group of students was manhandled for not standing in the threatre((Smitha T.K., Chennai Students Allegedly Beaten At Movie Theatre For Not Standing For Anthem, NDTV(12-12-2016), http://www.ndtv.com/chennai-news/chennai-students-beaten-at-movie-theatre-for-not-standing-for-national-anthem-1636942)). They were charged for disrespecting the anthem. But the worrying part is that the people who assaulted them escaped unharmed.This attempt to criminalize the feeling of patriotism is no different than the ISIS killing people in the name of Islam. The function of criminal law is not to satisfy the whims and fancies of the judges or of the majority public, there has always been an inherent bar of right and wrong in each society and the criminal law just gives that bar a force of law for its enforcement. The situation can be calibrated to a soldier denying to stand for national anthem because it is being sung in closed space, and being kicked out of the movie hall. The sentiments with which he took an oath to serve his country cannot be kicked just to satisfy the emotions of social networking keyboard warriors.

JUDICIAL CENSORSHIP AND JUDICIAL ACTIVISM

Judicial censorship is suomotu jurisdictive action restricting the independence of speech, in the absence of a prevailing law. Section 3 of the Prevention of Insults to National Honour Act, 1971 states:

“Whoever intentionally prevents the singing of 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.”

This judgement here is what I would like to call ‘judge made law’. But before coming to that let’s emphasize on doctrine of separation of power. The separation of powers is based on the principle of triaspolitica. The Doctrine of Separation of Power is the forerunner to all the constitutions of the world, which came into existence since the days of the “Magna Carta”. Though Montesquieu was under the erroneous impression that the foundations of the British constitution lay in the principle of Separation of Power, it found its genesis in the American Constitution. Montesquieu had a feeling that it would be a panacea to good governance but it had its own drawbacks. A complete Separation of power without adequate checks and balances would have nullified any constitution. It was only with this in mind the founding fathers of various constitutions have accepted this theory with modifications to make it relevant to the changing times. Article 50 has been enacted in the Indian Constitution, which lays down separation of power. It mention, “Separation of judiciary from executive – The State shall take steps to separate the judiciary from the executive in the public services of the State”. Practically, every enacted law on a probing analysis reveals certain gaps which the judiciary is expected to fill up by way of interpretation.  This is popularly known as ‘Judicial Legislation’(([1997] 8 SCC (Jour) 1)). This mechanism of filling the void acts as a system of checks and balances on the organs of the government. The Doctrine of the Separation of Powers, as articulated by numerous constitutional Benches of the Supreme Court of India, places policy decisions in the exclusive domain of the Executive, and the only policy that the courts can lay down is what is called the ‘judicial policy’, which is not very diverse from the supervisory principles of interpretation governing the predilection of one alternative to the others in terms of statutory and/or constitutional interpretation.

The policy making power is very well outside the reach of the judiciary and the very simple reason behind this fact is that its work is to sit in judgement for deciding the legal sanctity and constitutionality of the policy decisions, which is in parlance with the system of checks and balances which forms the core of the Doctrine of Separation of Power. The institutional boundaries must be treated as sacrosanct and must be breached, particularly by the Judiciary, only in such cases of dire need where any of the fundamental rights – individual or collective, directly or indirectly, because that amount of flexibility needs to be allowed to make law of more society friendly. The Judiciary must be tremendously careful as to not surpass the institutional frontiers because among all the three branches of the State, it is the one that can do it most easily, and every step it takes in that direction directly stakes at the heart of the constitution which lays down on the stone of justice and fairmindedness.

CONCLUSION

What all this stage play has been is nothing more than façade and mockery of the constitution in the name of the majority politics. The Apex Court was petitioned under Article 32 to exercise its extraordinary writ jurisdiction for the enforcement of Fundamental Duties under Part IVA of the Constitution and the Prevention of Insults to National Honour Act, 1971, which is impermissible under the constitution because Article 32 can be invoked only and exclusively for the enforcement of the Fundamental Rights guaranteed under Part III of the Constitution whereas Part IVA of the Constitution is not judicially enforceable in the first place.

The national integrity of our country has always been based on its diversity and the feeling it has towards it national flag. Furthermore, the link between the National Anthem and “a sense of committed patriotism and nationalism” that the Supreme Court made and based its order on is way too unlikely to serve as a lucid ground for the order handed down by the Apex Court. Apparently, the apex court is moving backwards into medieval ages. People are respectful to the National Anthem due to a sense of patriotism and nationalism, and not the other way round. Forced display of respect in no way promotes or invokes patriotism in people. All it does is generate anger and bitterness in people at being enforced to prove their patriotism at the commencement of every movie. With due respect to the Hon’ble Supreme Court, nation-building by anthem-singing does not sound like an unpleasantly sensible course to take. Besides, nation-building is the job of the political leaders. Courts have nothing to do with it, and it should be that way.