Citizens into subjects

The politics of patriotism and nationalism is not new and in many countries across the world, it has unfolded at different points in time, but often with very similar effects — harassment of minorities, blackmailing of dissenters and closure of intellectual freedoms. But what happens when the highest judiciary also begins to believe that the vital vitamins are in short supply and need to be injected forcibly?

Playing the national anthem in cinema halls is not a new move. Judicial overreach, too, is not a new phenomenon. In this case, for instance, the court could have chosen to wait till the government responded (the next hearing on this petition is scheduled for February 2017). Instead, it chose to hurriedly pass this order. In giving an interim order, the SC bench has sought recourse to three interconnected arguments and it is the logic employed by the court that merits critical discussion.

First, the court has transformed the national flag and national anthem into fossilised and statist signatures of power and authority instead of allowing these to be imbricated in popular affection and creative imagination. Because the court says that dramatisation of the national anthem is “inconceivable”. Also, it says that those using the national anthem should not derive any benefit from it. While this would only give rise to controversies over the use of the flag or anthem in creative performances, including their depictions in “commercial” cinema, the idea of transforming symbols of affection and pride into the legal-bureaucratic fangs of the state is equivalent to turning love into fear. Nationalism grounded in a punitive bureaucratic mindset often tends to give way to unruly vigilantism or authoritarian state machinery or both. The court arrives at this statist interpretation because it concludes that the notion of “protocol” is associated with the anthem and flag. It is a pity that popular symbols are thus turned into instruments to frighten and discipline the citizen.

Two, the bench chose to rely on Part IV A of the Constitution, the Fundamental Duties, in order to justify a forced show of respect. This is an explosive arena as far as interpretation of the Constitution is concerned. So far, rights constituted the core of the Constitution. Now, both inside the courtrooms and outside them, a shift in the discourse seems to have begun by invoking “duties”. In this order too, the court chooses to counterbalance rights with duties. This is unfortunate and problematic. Does the order imply that duties are more sacrosanct than rights? Does it imply that rights are conditional on fulfilling certain moral obligations? In fact, the court order has literally thrown open the doors for a new phase in interpreting the Constitution. While the order makes a reference to the “ideals engrafted in the Constitution”, it turns to the Fundamental Duties as instances of those ideals. Showing respect to the national anthem is one such ideal. While there cannot be two opinions on the importance of the anthem or the flag, to state that showing respect to them constitutes “ideals” enshrined in the Constitution is almost rewriting the document; changing it from a document based on welfare and liberalism to one based on authority, patriotism.

Three, the order mentions in passing the idea of constitutional patriotism. It is not clear from the short order of the bench what exactly the honourable judges mean by it. Constitutional patriotism could be seen as a great idea, exhorting citizens to commit to a liberal democratic ethic. It could, alternatively, be seen as an ideological tool for reordering the cognitive universe of citizens and thereby leave behind other loyalties — linguistic, ethnic, regional, etc and place national loyalty above everything. In the former sense, it would operate in the realm of values and moral principles — that citizens must abide by the fundamental values of the Constitution above all. It is doubtful if contemporary proponents of majoritarian nationalism would endorse this idea of constitutional patriotism.

In its latter sense, the idea of constitutional patriotism could privilege uniformity of ideas and ways of life — something Indian nationalism and constitutionalism sought to avoid. From the wording of the SC order, it can be deduced that the honourable judges have probably leaned on the latter meaning of constitutional patriotism. Why else would they say that, “It (constitutional patriotism) 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.”

This approach of the court might not be very surprising. The courts have normally given rulings and interpreted the Constitution in tune with the overall political-moral ethos of the time. So, the thinking behind the order is consistent with the current ethos.

These three arguments of the bench make for disturbing reading. The order engages in a redefinition of citizenship, wherein the holding of rights is not the hallmark of citizenship; the discharge of certain obligations is the new sine qua non of being a patriot-citizen. Their lordships have taken away from us our cherished right to love our country, our society, our right to be nationalistic and patriotic; in one stroke, our rights are converted into legally enforceable duties — nationalism as compulsion is indeed a pitiful condition. The order of the court has pushed us into that pitiful condition. This is not exactly in tune with the specific history of India’s constitutionalism nor with the more general history of constitutionalism.

Constitutionalism evolved through struggles for rights of ordinary men and women. But when state appropriates the language of nationalism and blatantly sets aside citizenship rights in favour of duties, the wheels of history turn backward. India’s nationalism gave us democracy and converted subjects into citizens. Are we now contemplating to turn citizens into subjects?