In this blog post, Sudhanshu Jatav, a fourth-year law student from Gujarat National Law University, Gandhinagar analyses the decision f the Supreme Court of infusing people with Nationalism by running the National Anthem in theatres before a movie.
Not that I don’t have any respect for the honourable Supreme Court of India but this theatrical decision to run the national anthem in theatres before a movie is so out of place that it is amusing. On 30th of November the court decided to appoint itself as the national anthem’s protector-in-chief, an entirely solicited role for which there was no particular need. The court banned the “dramatization” of the anthem, banned people from deriving “any kind of benefit” from the anthem’s performance, partially banned the anthem from being printed and forced cinemas to play the anthem at the start of every film.[1] The first few things that ran through my mind after going through that news were, what do we get out of this decision? Why is there a need for this? Why is Supreme Court role playing? Will this get implemented properly?
As we all know, we have the concept of “Separation of Powers” and to implement the same, three separate bodies has been made Judiciary, Executive and Legislative, the three pillars of democracy. Our beloved Supreme Court is the crown of Judiciary and their role is to declare any law null or void if it violates the constitution (in a nutshell). Now the power to make laws goes with the legislative body, they are the policy making body of India, and every bill proposed by the executive is initiated, reviewed and discussed in the legislature. So the ill-fitting part here is the job of Supreme Court. Being a judicial body the court is not supposed to go all over the place and make laws, we have our legislative body competent enough to do that. The mighty Modi Sarkar as we all know was chosen by the people of India to be our representative and make laws. Government handles this part of the business and they are answerable to the citizens of India. Supreme Court is at the helm of the judiciary; all the other courts come under it making it not answerable to anyone. The Supreme Court totally went out of their jurisdiction in this situation.
Furthermore what makes me question the jurisdiction is the very question is that are judicial orders “law” for the purpose of Article 19(2)? Article 13(3) of the Constitution, which defines “law” for the purpose of Part III as “any ordinance, order, by law, rule, regulation, notification, custom or usages having in the territory of India the force of law”, when read noscitur a sociis, seems not to include judicial orders. Now, it may be argued that various judgements have held that Article 141 of the Constitution speaks of the “law” declared by the Supreme Court, and that consequently, Supreme Court judgements or orders constitute “law”. That is true, but textually, Article 141 only envisions the Supreme Court “declaring” law; more importantly, however, it does not follow that the word “law” used in Article 141 carries the same meaning as “law” under Article 13/19(2). To start with, textually, Article 13(3) prefaces its definitional terms with the phrase “in this article…law includes…” The definition, therefore, is specific to Part III of the Constitution. [2]
Let’s get down the memory lane for a better understanding of the National Anthem Saga. Supreme Court in the case of Bijoe Emmanuel & Ors v. State of Kerala in 1986 decided that forcing someone to sing or stand for national anthem qualifies as the violation of the fundamental rights. This is no obligations on anyone to sing the anthem to show respect. The aim of getting independence from the British rule was to ultimately get freedom, the freedom to express opinions in any way one chooses. When in the shadow of nationalism the government compels an individual to do something or to express their views in a predefined way, they are, be it intentionally or unintentionally taking away that very freedom of free speech and expression. Now after 30 years Hon’ble Mr. Justice Deepak Mishra and Hon’ble Mr. Justice Amitava Roy in the case of Shyam Narayan Chouksey v. Union of India after quoting Art 51A Fundamental Duties stated, “it is clear as crystal that it is a sacred obligation of every citizen to abide by the ideals engrafted in the constitution. And one such ideal is to show respect to the National Anthem and National Flag” [3]
The problem with this judgement here is that Supreme Court tried to justify their puerile judgement backing it only on the basis of fundamental duties vested under Art 51: “Fundamental duties – It shall be the duties of every citizen of India- (a) to abide by the Constitution and respect its ideals and institutions, the National flag and the National anthem” [4] which does not even remotely justify as to how not standing for national anthem qualifies as disrespect towards the so called prestige of the Nation. Furthermore what comes into question is that whether there exists any legal basis on which theatres and other private institution can be compelled to play national anthem? There is absolutely no legal basis and wholly comes out as the violation of freedom of speech and trade.
Looking at what J. Mishra said in his judgement “Be it stated, the time has comes, the citizen of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is a symbol of constitutional patriotism and inherent constitutional 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.” It becomes a lot clear that his concept of respect for national anthem and perception of individual rights are rusty from its roots since it clearly ignores the fundamentals of legal theory. These kinds of weakly thought judgements are being delivered more often than not, which makes me question whether the Indian judiciary in its near future will be able to deliver the justice that was promised?
[1] Bhairav Acharya (2016, December 2) National Anthem and Supreme Court’s Popcorn Nationalism. Retrieved from http://thewire.in/83910/the-national-anthem-and-the-supreme-courts-popcorn-nationalism/
[2] Indian Constitution and Philosophy (2016, November 30) The Illegality of the Supreme Court’s National Anthem Order
[3] Shyam Narayan Chouksey v. Union of India, 2016
[4] The Constitution of India, 1949
