The Constitution is a lot more liberal than the interpretation placed on it by Supreme Court justices
At the stroke of the noon hour on November 30, 2016, India was shocked with less freedom. India “awoke” to a Supreme Court diktat, which comes but rarely in history. Through possibly an unconstitutional judgement, the SC forced India to step out from the old to the “new”; a new in which it was stated that “love and respect for the motherland” is reflected when one shows respect to the National Anthem as well as to the National Flag.
Invoking Article 51(A), Fundamental Duties occurring in Part IVA of the Constitution (incidentally, one introduced into the Constitution during Indira’s Emergency) Justices Dipak Misra and Amitava Roy stated in their new world order that it “is clear as crystal that 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. 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 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.”
And how will Constitutional Patriotism be revealed? “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.” Continuing, the judgment states that “When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen. “
With this order, it might appear that the large senior judiciary in India has not enough legal work on their hands. For example, the Supreme Court recently heard a petition seeking a ban on Sikh jokes, and even set up a five member panel, headed by former Justice Bedi (himself ostensibly a fan of jokes, including Sikh jokes; who isn’t?) to study the issue and give ‘recommendations”. Hah—a good joke.
If the SC order of a constitutional legal requirement—that all cinemas play the national anthem before the start of any and every film in the country—can happen, then possibly the SC will also rule that Sikh joke telling is illegal.
Is it not an insult to the national flag to treat it in this cavalier a manner that it is played in halls of entertainment? And while they are at it, what is the considered view of the honourable SC about showing “respect” for the national anthem when one is watching a cricket match at home? (Incidentally, why the playing of the national anthem at a sports stadium?) If that is considered to be an intrusion of privacy and a rejection of individual rights (thank God and thank the Supreme Court), then what about enforcement of standing when national anthem is being played in restaurants. Will one be forced to stand up then? If not, why not? And what about disrespect to the nation if one is eating while standing up? Should one spit out the food instantly?
There is a logical connection in people’s minds about the “patriotic” BJP regime and the hurried hearing, and passage, of the SC diktat on cinemas and the national anthem. This is possibly a false connection, and false on many grounds. First and foremost, what has true patriotism got anything to do with standing up for the national anthem in cinemas? Second, there are three states that require the national anthem to be played in cinemas; Maharashtra, Karnataka and Goa; At the time of false patriotism diktat, all three states were ruled by the opposition—Congress in Karnataka and Goa, NCP in Maharashtra. Does it make the standing up to be counted legislation any better (or worse) now that the SC has passed this law with the BJP at the Centre?
It is also quite surprising to see the extent of bi-partisan support for the standing up diktat. Congress spokesperson Manish Tewari tweeted “Surprised at criticism of SC ruling on #national anthem. If Indians will not stand in respect for their own anthem who else will—the Pakis?” I am hoping that Tewari was being sarcastic and/or that this was a hacked statement. Attorney general Mukul Rohatgi of the BJP was deferential, and approving, in stating that he completely agreed with the need for specific guidelines to show respect and honour for national anthem and the flag. (emphasis added).
What the new law means is that movie-going will be reduced, at least for patriotic, film-buff Indians like me. If I do go to the movies, I will stand outside the theatre (I will be standing anyway so the SC should be pleased that people are faithfully following the law of the land) until false patriotism has played itself out. The Supreme Order stated that all people present in the movie must rise and pay respect to the anthem. So standing outside is okay, I hope.
I believe our Constitution, is in many respects, outdated and has clauses in it from another era. It is a Constitution pertaining to the power of the state, and most explicitly not the rights of individuals. Nevertheless, the Constitution is a lot more liberal than the interpretation placed on it by SC justices. Consider the following illiberal decisions of the SC over the last five decades. First, that there be a legal requirement that there be education and job quotas for the Scheduled Castes and Scheduled Tribes. But nowhere does the Constitution says that SCs and STs should get special treatment at the expense of other “socially and educationally backward classes of citizens”. All backward classes are supposed to get equal treatment. For example, poor Muslims are as deserving of special treatment as poor Hindus, or poor SCs or poor STs. Second, in the 1990s, the SC allowed even more regressive strictures by requiring that OBCs be included in the net of reservations. How many of you know that the C in OBC stands for class, not caste?
Third, in 1959, the Supreme Court allowed the killing of cows after they reached the age of 16. Why was this done so? Because they felt that resources were scarce, and fodder was scarce, so cows of 16+ years of age could be killed to make way for younger cows.
But a 2005 SC judgement (rarest of rare cases, a seven-member bench, and the Congress in power) reversed the 1959 judgement and said that cows and bulls could not be slaughtered and gave the following grounds for doing so: “It cannot be accepted that bulls and bullocks become useless after the age of 16. This is because till the end of their lives they yield excreta in the form of urine and dung… An old bullock gives 5 tonnes of dung and 343 pounds of urine in a year which can help in the manufacture of 20 cartloads of composed manure”.
The author is contributing editor, The Finanicial Express, and senior India analyst at Observatory Group, a New York-based macro policy advisory group. Views are personal.