It is an especially chilling moment when the Supreme Court curbs individual freedom in the name of nationalism. It’s the Supreme Court which has often protected and upheld the rights and liberties of the individual and the minority against attempts by the state to encroach on them, often in the name of the majority’s mandate. But Tuesday’s directives on the national anthem — it shall be played in all cinema halls, everyone shall stand up as a mark of respect, with all exits closed off, among other do’s and don’ts — are a clear and troubling backsliding from that record. By taking the patriotism test into the cinema hall, by forcefeeding a notion of nationalism to people seeking entertainment, the bench of Justices Dipak Misra and Amitava Roy has not just offered an instance of striking judicial overreach. It has also let down all those who have come to look up to it as a custodian of constitutional freedoms. That the court is invoking the Constitution while moving against its spirit is even more disquieting.
India’s Constitution, after all, speaks of respect to the national flag and anthem as a fundamental duty in Part 1V A — a non-justiciable part of the document. Article 51(A) says that “it shall be the duty of every citizen of India — (a) to abide by the Constitution and respect the ideals of the national flag and the national anthem”. The message of the founding fathers was clear: Respect to the nation and its symbols would not be enforced by state diktat or extracted through legal compulsion. Before Tuesday’s order, the apex court might also have done well to re-read one of its own judgements, which invoked and interpreted Article 51(A). In August 1986, in Bijoe Emmanuel & Others vs State of Kerala & Others, for the bench of Justice O. Chinappa Reddy and Justice M.M. Dutt, the question was: Did the refusal of three children, belonging to a sect called Jehovah’s Witnesses, to sing the national anthem during the morning assembly — because according to them, its singing is against the tenets of their religious faith — justify their expulsion from school? Calling the expulsion a “violation of the fundamental right to freedom of conscience and freely to profess, practise and propagate religion”, the apex court said that “there is no provision of law which obliges anyone to sing the national anthem…” It concluded: “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it”.
In March this year, the political resolution adopted at the BJP national executive insisted that chanting “Bharat Mata ki Jai” is a constitutional obligation. In the same month, an elected legislator from the AIMIM, Waris Pathan, was suspended from the Maharashtra assembly for refusing to chime in. There have been instances of vigilantism in movie halls and other public spaces targeting people for their unwillingness or inability to wear their patriotism on their sleeve. That the highest court of the land could join in this growing, dreadful clamour is a disturbing prospect. The court must urgently review Tuesday’s order.