In 1984, while the Republican National Convention was taking place in Dallas, one Gregory Lee Johnson participated in a demonstration which ended in front of the Dallas City Hall. Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted, “America, the red, white, and blue, we spit on you.” Johnson was charged, but not with sedition. His offence was the “desecration of a venerated object”. The court recognised Johnson’s conduct as a “symbolic speech”, protected by the provisions for the freedom of speech under US law. It rejected the state’s argument justifying punishment in the name of preserving the flag as a symbol of national unity.
In Smith v Goguen, the US Supreme Court held that “neither the United States nor any State may require any individual to salute or express favorable attitudes toward the flag”. Can the fundamental duties in the Indian constitution be made justiciable like the fundamental rights? Even Indira Gandhi, who had these duties inserted in the Constitution, could not make them justiciable.
Justice Dipak Misra’s interim order directing that the national anthem be played in cinema halls has initiated a new debate. His judgment in the Madhya Pradesh High Court on this subject was overturned by a three-judge bench of the apex court in 2004. Demanding patriotism from those who have paid for mere entertainment may not be a great idea but criticising Justice Misra’s order as an overdose of nationalism is wrong. Justice Misra used the term “constitutional patriotism”. Jurgen Habermas uses this term (verfassungspatriotismus) to argue for “individual autonomy” and “super-national identity”. For Habermas, the term is different from “aggressive nationalism,” based on majoritarinism; it is a compromise between nationalism and cosmopolitism. “Patriotism” is compatible with universal liberalism and is thus an antidote to “nationalism”
But having used the term “constitutional patriotism”, it is not clear why the judges deemed individual rights to be less important. “Constitutional patriotism” has the potential to reunite India, Pakistan and Bangladesh because, for Habermas, citizenship does not require that all citizens share the same language or the same religious, ethical or cultural origins. The hindutva brigade may not really agree with the concept of “constitutional patriotism”. In fact, this concept requires citizens to be socialised into a common political culture on the basis of liberal constitutional principles such as individual autonomy, critical rationality and diversity. The use of the concept replaces majority culture with political culture and involves the rejection of radical nationalism, xenophobic ethnocentrism and religious fundamentalism.
The Prevention of Insults to National Honours Act,1971 neither mandates the singing of the national anthem nor does it demand that people stand up when it is being sung. The Act merely punishes those who intentionally prevent the singing of the national anthem or disturb an assembly where it’s being sung. Therefore, questions are being raised about the unnecessary curtailment of fundamental freedoms without a “law” being enacted by Parliament, especially because the expression, ‘law’, under Article 13(3), does not cover judicial law making.
The government has clarified in Parliament that it is not making the singing of the national anthem mandatory even in schools. Meanwhile, it is hoped that people who are not able to stand would not be targeted or mocked or their pictures being uploaded by the anthem vigilantes. Even the home ministry order on the national anthem leaves it to the “good sense of the people not to indulge in indiscriminately… singing or playing of national anthem”.
In the national anthem case, when three students from the Jehovah Witness sect were expelled from the school for not singing national anthem, the Supreme Court held that these children were exercising their right to silence, which is implicit in the freedom of speech. The court said: “Our tradition teaches tolerance, our constitution preaches tolerance. Let us not dilute it.”
By making compulsory the playing of national anthem or asking people to stand when it’s being sung, are we not diluting the freedoms which our national anthem and “constitutional patriotism” really represent?
(This article first appeared in the print edition under the headline ”Not Constitutional”)