Patriotism, by order

IN an interim order delivered on November 30, the Supreme Court bench of Justices Dipak Misra and Amitava Roy observed that when the national anthem is sung, the concept of protocol associated with it has its inherent roots in national identity and integrity and constitutional patriotism. After this passing observation, without any reasoning, the bench issued several directions with regard to screening of feature films in cinema halls in India.

“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,” the order reads. It also directed that the national flag be shown on the screen when the national anthem is played.

The order further adds:

“Prior to the national anthem is 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.”

The only justification cited in the order is this:

“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 [of] committed patriotism and nationalism.” In order to defend this justification, the bench cited Article 51A (a), which says that it shall be 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.”

The bench further reasoned: “Be it stated, a time has come, the citizens of the country must realise that they live in a nation and are duty-bound to show respect to the 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.”

The bench’s reasoning betrayed inadequate understanding of rights guaranteed under the Constitution and ignorance of how Fundamental Duties, enumerated through an amendment of the Constitution during the Emergency, have to be promoted. Also missing in this so-called reasoning of the bench was the answer to the question why cinema halls must be singled out for the observance of “constitutional patriotism”.

On December 9, the bench modified its order, stating as follows:

“If a physically challenged person or physically handicapped person goes to the cinema hall to watch a film, he need not stand up, if he is incapable to stand, but must show such conduct which is commensurate with respect for the national anthem.”

The bench also clarified that it did not direct that the doors of the cinema shall be bolted from outside when the national anthem is played, but only said that they should be closed in order to regulate the ingress and egress during the period.

Disturbing aspects

Such partial relief apart, the interim order raised serious questions about not only the procedure adopted by the bench but also substantive issues.

The petitioner in this case, Shyam Narayan Chouksey, sought a bar on the commercial exploitation of the national anthem. Earlier, Chouksey had moved the Madhya Pradesh High Court objecting to the “commercial use of the national anthem” in the movie Kabhi Khushi Kabhi Gham .

He was aggrieved when the audience refused to stand up when the national anthem was played as part of the movie. The movie depicted singing of the anthem by a student in a school function held in a foreign country.

The High Court bench, then headed by Justice Dipak Misra, gave a verdict in 2003 in favour of Chouksey and directed the deletion of the scene which depicts the playing of the anthem from the movie.

However, on April 19, 2004, the Supreme Court’s three-judge bench, in Karan Johar vs Union of India , set aside the High Court’s judgment, accepting the Central government’s explanation that if the national anthem was exhibited in the course of screening of the film, the audience was not expected to stand, to avoid interruption, disorder and confusion, as that would not add to the dignity of the anthem.

Chouksey then filed a review petition. The Supreme Court, while hearing this petition, recalled its order except on the question of certification of the film, and stated that the questions of law arising in the case had far-reaching implications and needed to be considered by the court. However, as the review petitioner was not present during the hearing, the Supreme Court opted to determine the questions of law in an appropriate case later.

Against this background, the listing of a similar petition filed by Chouksey before a bench headed by Justice Dipak Misra surprised observers.

Propriety demanded that the judge who had heard a similar matter in his capacity as High Court judge did not get the chance to hear it after his or her elevation to the Supreme Court so as to avoid bias or conflict of interest.

Substantive Grounds

On the face of it, the interim order also ignores valid precedents. In Bijoe Emmanuel vs State of Kerala , three schoolchildren belonging to Jehovah’s Witnesses, a sect that worships only Jehovah—the creator —and none other, were before the Supreme Court as appellants. They had refused to sing the national anthem because they said singing it —not its contents—was against the tenets of their religious faith. They desisted from actual singing only because of their honest belief and conviction, but they used to stand up in respectful silence daily during the morning assembly in school when the national anthem was sung. The headmistress expelled them from the school for their refusal to sing the anthem. The Kerala High Court rejected their challenge to their expulsion.

On August 11, 1986, the Supreme Court allowed their appeals against the High Court judgment by holding that their fundamental rights under Articles 19(1)(a) and 25(1) had been infringed and that they were entitled to be protected. The Supreme Court set aside the High Court judgment and directed the school authorities to readmit the three children into the school.

In Bijoe Emmanuel , the Supreme Court distinguished singing of the national anthem from standing when it is played and found the three children not guilty because they respectfully stood without singing. But the question whether the court should protect a person from standing during the playing of the national anthem, if such an act is perceived to be in conflict with one’s right to profess and practice a religion or a belief that it does not, by itself, help to promote patriotism, was not before the court in the case. But the concluding words in Bijoe Emmanuel continue to have resonance in Chouksey :

“Our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practices tolerance; let us not dilute it.”

Curiously, the court dismissed a petition moved soon after Chouksey , seeking a direction to play the national anthem in all courts in the country before they began their work in the morning. It cited procedural infirmities in the petition.

Critics also posed the question whether the Supreme Court’s interim order would have the force of law to justify this restriction on fundamental rights of citizens. Another question which remains unresolved is whether foreigners, who are not Indian citizens, watching a film in India are bound by this order to stand up.

Justice Amitava Roy quipped during the hearing on December 9 that if someone attending a film festival in India watches 40 films, he or she is expected to stand 40 times during the singing of the national anthem before the start of every screening. Such a harsh requirement resulting from a judicial order would prove to be counterproductive, warned a senior advocate of the Supreme Court.

The interim order has already begun to have its toll: 12 persons, including two women, were detained by the police for not standing while the anthem was being played at the International Film Festival of Kerala in Thiruvananthapuram on December 12, while eight persons, including three women, were attacked by a group of 20 in a Chennai cinema hall, for not standing during the playing of the anthem. This vigilante group forced the police to register a case against the eight under the Prevention of Insults to National Honour Act.

The danger of the Supreme Court’s interim order encouraging moral policing and use of force by vigilante groups to ensure compliance with it, resulting in breach of public order, appears real.