It Is Only A Song
By Poonam I Kaushish
What’s in a song? Everything if it is the national anthem. This was strummed by the Supreme Court last Wednesday to instill “committed patriotism and nationalism”. Its another matter that the beautiful and melodious Jana Gana Mana is being turned besura by our judicial drumbeaters.
The Apex court ordered the “national anthem to be played before the start of a film in all cinema halls with all present obliged to stand up to show respect as part of their secret obligation to abide by the ideals engrafted in the Constitution” on a PIL filed by a retired engineer from Bhopal. Sic.
Underscoring that “Bharat is the epitome of gyaan and vigyaan…people must feel this is my country…You are an Indian first.” It further prohibited the anthem’s “commercial exploitation” for incurring commercial benefits or using an abridged version. However, it did not impose penalty or punishment for not standing when the 52 second long Jana Gana Mana is played. Yet what is sauce for the goose is not sauce for the gander as the court turned down the plea to play the anthem in courts as it would be ‘an overreach’.
Predictably, the Saffron Sangh and its cahoots are rejoicing by stating this order was long overdue as the national song is just another prop to celebrate the nation State and undue importance mustn’t be given to it. Others aver that singing Jana Gana Mana must neither be made a test case of patriotism nor should people be obstinate about not singing it. Unfortunately, why does not a sense of patriotism kick in where it should for most people? The fact that six women are raped every minute or that we are famous for littering does not bother our so-called desh-bhakts.
Not a few argue that legal intervention in promoting and inserting national pride amid people is a problematic idea. As the notion that playing the National Anthem before a movie screening would instill some sense of national pride is debatable at best.
Either which way, in one fell stroke the Court has put curbs on individual freedom in the name of nationalism. Raising a moot point: Should the Court entertain such issues? Is it the learned judges’ function to go into whether a person is patriotic or not? How can they decide whether an aam aadmi’s loves his country?
Is standing up for Jana Gana Mana the sole barometer for judging one’s patriotism and showing respect to the national anthem? Does singing it define and decide nationalism, national identity, integrity and Constitutional patriotism? By that token any rascal can stand up without believing in the Constitution or the national flag. What of him?
Besides, does one wear patriotism on one’s sleeve? Can one force people to be patriotic? What of people who might not want to stand up for intellectual or religious reasons as they believe that their religious beliefs prevent them from doing so? If a terrorist’s stands up for the national song to fool security forces does that make him patriotic? And is a desh bhakt who does not adhere to the Court order a desh drohi?
Undoubtedly, the Court’s intent might be good but the manner in which it has gone about it is not. Also true the Constitution’s Article 51(A) (a) enjoins: “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”.
Questionably, how and who will implement this order “in letter and spirit”? Who will oversee how many people are standing or sitting while the anthem is playing? And who will do a head count? What about the physically disabled, infirm and aged? And if somebody urgently needs to go to the washroom will a cinema hall owner be responsible?
Moreover, by asking the cinema owners to close the exit doors while the anthem is being played does not smack of reason. What if a fire breaks out? Remember the Uphaar tragedy where over 59 people lost their lives because the exit doors were closed by the management.
Clearly, this is an instance of judicial overreach specially against the backdrop that the “Constitution practises tolerance” while the Supreme Court is the custodian of our Fundamental Rights and Constitutional freedoms. There are so many Fundamental Duties will they give directions to enforce them? Also, it is not judicially enforceable
Pertinently, the Apex Court seems to have forgotten its own order in the Bijoe Emmanuel & Others vsState of Kerala & Others in 1986, wherein it ordered a Kerala school to take back three children it had expelled for not singing the national anthem as it was a violation of the Fundamental Right to Freedom of Conscience and freely to profess, practise and propagate religion adding there was no legal provision that obliges anyone to sing the 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.
In fact, the practice to play to play the national anthem in cinema halls was first introduced after the 1962 India-China war. Those were the times when national fervour was high and it was played at the end of the movie, no matter the aam janata simply walked out when the film’s ‘The End’ flashed on the screens. Perhaps this is the reason why the practice of playing it slowly faded and was eventually discontinued, until 2003 when a NCP MLA lobbied and got the Maharashtra Government to order cinema halls to do it again.
Undeniably, forcing someone to stand up for the national anthem is an insult to its very idea and promise. More so as people go to see cinema as a form of entertainment and recreation, seek solace from rozi-roti problems or just passing time.
Think. Even as the Constitution allows one freedom of expression it simultaneously calls for respect of the freedom of expression of thoughts which one might not agree with. Consequently, this order should not be incitement to vigilantism and violence wherein people are targeted for their unwillingness to adhere to a certain belief. Recall, an AIMIM MLA was suspended from the Maharashtra Assembly for refusing to chime Bharat Mata ki Jai.
The Supreme Court could take a leaf out of its US counter part. In a 1989 case of Texas vs Johnson it shot down a law which prohibited the desecration of certain venerated objects, such as State and national flags and proscribed the State from criminalising or penalising any action that did not satisfy the more tearing concept of either allegiance to the state or respecting national honour.
According to the court, these acts were shielded by the First Amendment, which guarantees citizens the freedom of speech. The American law, unlike the Indian law, does not cite a ‘reasonable restrictions clause on these freedoms.
In sum our judiciary needs to realise its limitations, practise what it preaches and stick to the lakshman rekha. Ironically, written by Nobel laureate Rabindranath Tagore in Bengali the underlying message of Jana Gana Mana is pluralism. Hence, our Constitution keepers need to keep in mind, India’s multi-pluralistic character, pulsating democracy and that its civil society is neither rigid nor frozen in time. It is constantly evolving.
Samuel Johnson rightly said: Patriotism is the last refuge of a scoundrel. —– INFA