This article is written by Ridhi Mittal, a student of Symbiosis Law School. This article talks about what is constitutional patriotism and its existence in different places.

Introduction

The Constitution is the living document and guide of laws and rights. It is a body of fundamental principles established by our ancestors. On the other hand, patriotism is a feeling of love or we can say devotion to one’s own country. These two when put together might seem contradictory terms as the Constitution limits political power whereas patriotism mobilizes people for political sacrifice. When put together, constitutional patriotism means attaching itself or having devotional feelings for the Constitution of their country rather than any particular society or nation. 

Through this article, we get to know about the origin of the idea of constitutional patriotism and the recent concepts under which it is dealt with. Also, this article contains details regarding the implications of constitutional patriotism when it comes to different societies. Patriotism is the belief in the values and norms whereas nationalism means the feeling of one’s superiority. Constitutional patriotism is the love for one’s country and belief in its doing whereas constitutional nationalism means that one believes that whatever his country does is right and is superior to other countries. Under nationalism one looks for the combined interest of the nation rather than an individual or a particular group. 

Origin of the theory

This theory dates back to the post effects of World War II, wherein, West Germany (a half nation) people were having a feeling that their nationality has been compromised on the account of their nazi past. The then evolved theory of constitutional patriotism dealt with the memory of the holocaust and militancy of the Third Reich with a protective and state-centered means. It was Karl Jaspers, a liberal philosopher, who, after the war, suggested the idea of constitutional patriotism in terms of collective responsibility to deal with German political guilt. Dolf Sternberger, a student of Karl Jaspers, coined the term constitutional patriotism in the late 1970s by expressing it as a means of establishing peace and harmony in Germany post world war II. He made the citizens believe that it was a protective measure against all the internal and external threats. Therefore, for the protection and security of the people, he linked constitutional patriotism with militant democracy.

When it comes to the literal theory, it was Jurgen Habermas, who developed the context and spread the idea of constitutional patriotism into various countries. For him, this concept was a conscious strengthening of political principles. His idea differed from Sternberger a little as Sternberger talked about constitutional patriotism in terms of defending demarcation institutions but Habermas talked about constitutional patriotism in terms of public reasoning. He got context for his theories from West Germany. He suggested unifying West Germans with the support of constitutional patriotism. It was thought to be superfluous after the unification of the country but instead was criticized as a poor substitute for a proper national identity. This concept of constitutional patriotism has been proved as a solution to the different political allegiances faced by multicultural societies.

Constitutional patriotism and its possible implications in highly diversified societies

When we talk about diversified societies, India is the best example as it has several different cultures within a specific territorial boundary. For instance, the diversity of India can be broadly categorized into 4 directions- north, south, east, and west, each direction representing a different culture or values. Constitutional patriotism, on the other hand, means devotion, love, and loyalty towards the Constitution. Although, we can say that the Constitution best caters to the needs of the people and is a great choice to adopt the concept of constitutional patriotism but that is only in theoretical terms. 

When we see the practical implications of this theory, it is quite difficult to execute it. Everyone respects each other but still there lies religious and cultural differences between people. Everyone thinks highly of their culture and treats the other one below themselves. Therefore, shifting this respect and love from their respective values and norms to a fixed set of rules can be a bit challenging. It may be possible but will consume a lot of energy and skills of people. People still can fight anytime and anywhere on religious grounds. 

Another example can be America, where several small states constitute one country known as the United States of America. People belonging to different states are devoted towards their self-state and follow the rules there and not of the USA as a whole. The feeling of nationalism and patriotism amongst the citizens of America are towards their state. Similarly, in India, people are more inclined towards their state rather than a country. For instance, when there is a fight between a Punjabi and a Gujrati, and a 3rd person who is also a Punjabi comes in between, he will take the side of a Punjabi only as he has a feeling of commonness with that Punjabi rather than the Gujarati. Here, we can see how religious or cultural patriotism is more in practice rather than constitutional patriotism in the country.

Deliberative democracy

Deliberative democracy, in layman terms, means deliberating and discussing any issue or topic thoroughly before making any political decision. People of the country talk about issues, exchange their opinions, and formulate a decision with keeping in mind the public good. Constitutional patriotism in this respect ensures that political decisions are taken better when people argue, give their opinion, find positive and negative points of an issue and then form a decision rather than giving choices to a body or organization to choose what they feel is best. Preferences are set as per collective decision-making instead of self-interests. It is more related to the exchange of information, drawbacks, and justifications and not having any conflicts or competitions due to conflicting interests. But this is not as easily done as it is said. 

With a population of millions and crores, it is very difficult and somewhere unreasonable to include everyone in the discussions related to political decisions and policies. There are several modes of expression and styles that are not accepted, adhering to which it is almost impossible to have such diversified discussions over several issues. Constitutional patriotism in a way can answer the problems of deliberative democracy. Deliberative democracy talks about having discussions and coming to a conclusion that is of the public. Constitutional patriotism here acts as the motivating factor because it ensures the allegiance of people to its Constitution and the Constitution of any country ensures that its citizens benefit from it, their rights and properties are safeguarded. Therefore if the feeling of patriotism is in terms of their Constitution then people will make decisions in respect of it thereby coming to a common conclusion.

Constitutional patriotism in India

When we talk about constitutional patriotism in India, it is yet to evolve. But seeing the conditions in India, people might turn to constitutional patriotism very soon. People of different languages, religions, and cultures are seeing constitutional patriotism as an alternative to these problems. They feel that having a feeling of love and affection towards the Constitution will give better results than pledging their loyalty towards any government. It feels like it won’t be long before the concept of constitutional patriotism takes a drastic turn in India. It embodies an entire worldview of restructuring the society and state in a certain manner, with the Constitution itself being placed at the center. 

To quote Pranab Mukherjee, 13th President of India, “from our Constitution flows our nationalism and the construct of Indian nationalism is constitutional patriotism”. He meant that when thinking of nationalism, that is, feeling of brotherhood, love, and devotion for the citizens of the country, one shall imagine its Constitution. The Constitution acts as the guiding bible of India, it is a living document which amends according to time and is flexible enough to include every diversified citizen of its country. 

India has already seen a partition war in 1947 on religious grounds and to avoid any such internal or external conflict in the future, the country should be united and not divided because of diverse cultures and religions. To cater to this need, constitutional patriotism is the best solution as the Constitution treats everyone equally and prohibits discrimination therefore, if one regards the Constitution as the head and not the government then he/she will work accordingly. Thus to keep the country united, constitutional patriotism is the answer, especially in a country like India where the Constitution is the guiding path. But in case if the Constitution proves to be a hindrance to the quality and brotherhood of the citizen, the patriotism towards it will tend to decrease.

In recent times, for example, the ongoing farmer protest against the Farmers Bill introduced by the government and also the Anti-CAA protest have proved to be a game-changing point. The amendments made through these 2 Bills in the Constitution have created a protest-like situation in the country. The farmers have been sitting in protest since 9th August, 2020 against the farmer Bill passed by the current BJP government. Even the Citizenship Amendment Act, 2019 has been a bone to the idea of constitutional patriotism as both of them have led people to believe in the dysfunctioning and poor policy-making of the government rather than towards the strong-mindedness of these people. The introduction of these constitutional Bills in the country has created a long gap between people and the idea of constitutional patriotism.

There is another angle to this whole method of constitutional patriotism through protest. When people come together to protest against a bill or any amendment, they have a feeling of hatred amongst themselves but when seen from an outer perspective it looks like love and unity amongst the citizens of the country. For example, if we take the case of farmer Bill, everyone marched to Singhu border, Delhi to protest against the Bill with a feeling of hatred towards the government but when seen superficially it seems as if due to the love and unity amongst the citizens, they got together for the protest. Therefore it is hate portrayed as love and unity that brings together the people of the country.

Case laws regarding constitutional patriotism

The most prominent and important case law in terms of constitutional patriotism in India is Shyam Narayan Chouksey v. Union of India (2018). This case talks about the position of law in India in terms of standing up for the National Anthem. The petitioner in this case talks about how the National Anthem has been used as a commercial symbol, its dramatizations, and different interruptions of the anthem being played. He referred to the Insults to National Honour Act, 1971. The debate regarding the National Anthem being interrupted and also being played in a movie theatre took place. The question of whether all should stand for the anthem in a theatre was raised during these deliberations. The Supreme Court, in this case, said that the recommended orders by the side of the petitioner be implemented. The recommendations proposed, thus included the point that every patron must stand while the National Anthem is played in the beginning and the doors of the theatre hall must be closed and no one will be allowed to leave.

The judgment, although in utmost good faith, tried to instil a sense of patriotism and nationalism by invoking the responsibilities stated in Article 51A, does put the common man in a tough spot. By passing an order that made it mandatory for all patrons viewing a movie to stand while the National Anthem is played, in essence, does restrict the freedom of expression of the people. ​​As Rabindranath Tagore once remarked, “Patriotism cannot be our final spiritual shelter; my refuge is humanity. I will not buy glass for the price of diamonds, and I will never allow patriotism to triumph over humanity as long as I live.” Patriotism is not just concerned with following the set rules and regulations and norms of the society but it is more about the depth of this feeling in the hearts of the people. A patriot may opt to devise an exclusive mechanism/mode of expression of loyalty towards the nation. Even though a common expression of depiction is more appreciated, yet every patriot may have his own way of expressing his love for his country and loyalty towards them. 

Through this case of Shyam Narayan Chouksey v. Union of India (2018), Hon’ble Justice Mishra gave seven commandments of constitutional patriotism. They are as followed:

• The National Anthem, in any case, should not be commercially exploited by anyone.
• Dramatising of the National Anthem by any citizen should not take place.
• Disgraceful presentation of the National Anthem in any kind should not be displayed.
• Respecting the National Anthem is the prime duty of every citizen in the country.
• The absence of every kind of disturbance during the playing of the National Anthem should be mandatorily ensured.
• One shall have the anthem in the background, and the flag on the screen and patriotism in the heart.
• Any abridged version of the National Anthem shall not be shown or played.

Relevance of the idea concerning European Union

European Union, headquartered in Brussels, Belgium, is a political as well as economic union of 27 members founded on November 1st, 1993. There are majorly 6 founding members – Germany, Italy, France, Netherlands, Belgium, and Luxembourg. Constitutional patriotism is seen as very important in the European Union as it has no single shared history or culture. When one generally talks about constitutional patriotism, they imagine patriotism towards the Constitution of the country but here lies a twist because we are not talking about any country but a whole union. Constitutional patriotism is seen in terms of political order. Creating a unified European identity is a difficult task, but constitutional patriotism has offered a liberal alternative to other forms of nationalism. People in the European Union are free to choose their culture and traditions as per their country and still have a common patriotic identity with other people in the EU. 

Constitutional patriotism holds a political order accountable because people have the choice to be constitutionally patriotic. People will only feel pride in a political order they feel warrants the emotion. Citizens of the EU have their individual choices as well as are patriotic to the Constitution of the EU which promotes multicultural and multireligious approaches. But the countries that do not abide by its Constitution and have their rule creates a bit of a problem as they rely on the electoral accountability of their citizens only. The preamble of the EU promotes the ideas of human rights, democracy, rule of law, human dignity, freedom, and equality. These are the core values promoted by constitutional patriotism also. Constitutional patriotism connects the different nations within the EU and brings out a feeling of unity and love amongst them for each other.

Conclusion

Constitutional patriotism is a feeling of patriotism, love, and devotion to the Constitution of the country rather than the nation itself. It evolved after the 2nd world war in Germany for the welfare and safety of its people. Many philosophers, especially German philosophers, talked about constitutional patriotism in their theories. Karl Jaspers, Dolf Sternberger and Jurgen Habermas were few of them.

Constitutional patriotism promotes the idea of deliberative discussions wherein one person does not take the political or economic or any decision of the country as per his self-interest but takes it for the public good. This is one of the reasons it gives the Constitution such importance because a Constitution of a country is made after a lot of arguments and discussions and the final verdict is made with a utilitarian theory, that is, what is best is what benefits the larger group. For instance, the Constitution of India was made by 100’s and thousands of arguments and discussions. It consumed a lot of time and effort of the intellects making the Constitution but all was worth it as it has the experience of the past, knowledge of the present, and is ready for what’s next to come in future. It is a living document mentioning all the plus and minus points. Even today, when any change is to be made, or any bill is to be passed, a body of intellectuals discuss it in detail and then decide in respect of what will be best for the public. But it has an implication as well, constitutional patriotism seems to be more easy and relevant in theory rather than when practically done. It is more of a theoretical idea than being a practical one. 

References

• https://www.jstor.org/stable/j.ctt7t80r
• https://academic.oup.com/icon/article/6/1/67/669061
• https://www.britannica.com/topic/deliberative-democracy
• https://lawbeat.in/columns/column-questioning-constitutional-patriotism
• https://www.scconline.com/DocumentLink.aspx?q=JTXT-9000520422
• https://blog.ipleaders.in/national-anthem-shyam-narayan-chouksey-case/
• https://theprint.in/pageturner/excerpt/hate-is-hot-in-india-colder-ideas-like-constitutional-patriotism-must-work-harder/359421/
• https://www.indiatoday.in/fyi/story/nationalism-patriotism-difference-people-973461-2017-04-25 
• https://www.firstpost.com/india/supreme-courts-national-anthem-order-the-seven-commandments-of-constitutional-patriotism-3134412.html 

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