A day after the Supreme Court ruled that all cinema halls shall play the national anthem before a film starts and that all present should stand up, eminent jurist and former Attorney General Soli Sorabjee questioned the order terming it as an example of judicial over-reach.
“In my opinion, the order is per incuriam (an order that is passed in disregard of a binding authority),” he told The Indian Express and said that he hoped the bench would modify its order at the next hearing.
Asked why, Sorabjee said: “Is it the court’s function to go into such issues? People must stand up…is it the only criterion for showing respect to the national anthem? People may not be able to stand up for physical reasons, people may not stand up for intellectual or religious reasons because they may consciously believe that their religious beliefs, consciously held, prevent them from standing up. The other thing is that they (the bench) have not referred to the landmark judgment in Bijoe Emmanuel case. Bilkul refer hi nahin kiya. Also, how will this order be implemented? Who will count (how many people are standing and how many are sitting while the anthem is playing)? Who will see if one can’t stand up due to physical problems or some other reasons. And then, close the exit doors… what if there is an emergency? What if somebody urgently needs to go to the washroom?”
In the Emmanuel case, the SC ordered a school in Kerala to take back three children it had expelled for not singing the national anthem. The children didn’t sing the anthem because of their conviction that their religion did not permit them to join any rituals except in their prayers to Jehovah. The court had ruled that there is no legal provision that obliges anyone to sing the anthem.
Saying that while the “intent” of the court may be “good”, Sorabjee said “but the method is not good”.
“This is going haywire. This (order) is not capable of effective implementation. That’s what I am trying to say. Judicial activism must not go haywire. They are referring to fundamental duties under Article 51A. There are so many fundamental duties, will they give directions to enforce them? i don’t think they are judicially enforceable. To preserve the rich culture of our country…see that. How will you implement that? I think judiciary has gone a little over-the-top,” he added.
In its order, the bench referred to Article 51(A) (a) of the Constitution, which states 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”.
Asked what, in his opinion, could be the way forward, Sorabjee said: “The court must feel that this order requires modification. interim order should not be confirmed. Tell me one thing: is the acid test of patriotism and nationalism only that we stand up (when national anthem is played)? Any rascal will stand up and he may not have any belief in the ideals of the Constitution or the national flag.
Remember Dr (Samuel) Johnson’s famous statement: Patriotism is the last refuge of a scoundrel. But doing this, passing such orders, they give ammunition to the critics of judicial activism in the country. I am repeatedly saying the intent is good but that’s not the way to do it. Who will implement it? Will cinema hall owner be responsible?”
Saying that the Constitution, which allows one freedom of expression, also calls for respect of the freedom of expression of thoughts that one doesn’t agree with, Sorabjee said, “This comes with the rider that there should not be incitement to violence. There are many cranks in our country. but we have to respect their beliefs.”
“I think the judges got carried away,” said Sorabjee. “The judges must not feel that they are the only people who can save the country and democracy. They must realise their limitations and that is the Lakshman Rekha that the judiciary must observe, it should practise what it preaches. It must also stick to the Lakshman Rekha. And, one thing is don’t get into fields that are beyond the judicial ken.”
Saying that the landmark judgment of the bench headed by justice O Chinnappa Reddy in the Bijoe Emmanuel case was a “very good judgment”, the former Attorney General said, “At the next hearing, somebody, maybe the AG, should appear and tell the court you can’t pass such orders. And, the court should listen… I would say this judgment is per incuriam. Read Emmanuel judgment.”