India with its rich past and history has had the privilege to have a lot of patriots who were even willing to sacrifice their lives for the safety, integrity and most important of all its freedom to turn our nation into a democracy. Our constitution makers believed the Freedom of Speech and Expression to form the foundation of a democracy and guaranteed the same to us through Article 19(1)(a) of the constitution and rested power upon the three pillars of Indian democracy namely the executive, judicial and legislative to uphold the same values of justice and freedom.
The modern times have been testing enough for the three as bypassing and abolishing several laws and judgments they have protected the freedom of speech and expression of citizens and at the same time maintained the peace within the country through Article 19(2) of Constitution. The judiciary in this situation has been very helpful in interpreting the constitution and guiding the social change in society through the powers vested by Article 141 and 142 to make its judgements binding on all other courts and at the same time make it enforceable all over the country.
Supreme Court has used these powers to protect interests of individuals, communities and every one however there have been times when the apex institution has stepped and used their powers to force norms into public life. One such scenario is of making it mandatory to stand when the national anthem is being played in the cinema halls before the commencement of a feature film. The feeling of patriotism is internal and sentimental, and an individual shall have all the rights to express it in their ways, but patriotism is something which has to be out of an individual’s own sentiment and cannot be forced upon them. In this paper we are going to analyze how the Supreme Court judgement
enforcing compulsory expression of patriotism on public platforms is violating the right to freedom of speech and expression promised under Article 19(1)(a) of Indian Constitution and is outside the purview of Article 19(2) as it is not against the interests of sovereignty, integrity of India or public order, decency, morality and security of the state and against the Fundamental Duty of a citizen under Article 51(1) as it only casts a duty to respect the Constitution, its ideals and institutions and there is no legal sanction for the violation of such duties and therefore is not only interfering with the individual’s right to express freely but also an act of Judicial Overreach.
Curtailing Freedom of Speech and Expression with Constitutional Patriotism
Supreme Court of India in its recent judgement in the case of Shyam Narayan Chouksey with a three-judge bench comprising of Chief Justice Deepak Mishra, Justice Khanwilkar and Justice DY Chandrachud has overruled its previous judgement which made it mandatory to play the national anthem in cinema halls before the beginning of every feature film and for everybody inside to stand in the honour of national anthem to ‘instil a feeling of committed patriotism and nationalism within one’. Even though in the current judgement the apex institution has made it optional to play national anthem but still has made it mandatory to stand up in respect of it and has displayed a priority towards constitutional patriotism instead of individual rights.
It is well established that free speech and expression can be curtailed under Article 19(2) only by an existing or new law passed by the legislation and no other mechanism. The restriction imposed under Article 19(2) must be “under the authority of law” and only reasonable restrictions can be imposed, no law has been enacted for the same therefore no restrictions must be imposed. Thus, to justify its actions in the absence of any such law the supreme court has resorted to constitutional patriotism as justification to encroach upon the freedom of speech and expression of people.
Constitutional Patriotism is a German Jurisprudence concept which indicated complete devotion to constitutional principles as a way of encouraging social cohesion and dwells on building a common identity for all its citizens over their individual culture, religion tradition etc., thereby making the constitutional principles as binding factors and nothing else. The idea was introduced by the German philosopher Karles Jaspers after World War II to inculcate the feelings of unity among the German people. It was believed to be a kind of solidarity that is different from the context of nationalism and the ideas of a single community. However, in this context, the Supreme Court has used this concept to play the national anthem as a means to instill patriotism and nationalism which is symbolic of the nation and not of the constitution.
Justice DY Chandrachud during the proceedings of the case realized the issue with mandating such an order and said that if any person does not stand during the time national anthem is being played or sung cannot be assumed to be less patriotic and that the people are visiting cinema halls for entertainment and if the government wants them to stand now, then in future might want them to wear proper attire in order to show respect to the national anthem and there will be no limits to moral policing and the very fact that people have a right to freedom of speech and expression they cannot be forced to wear patriotism on their sleeves.
Judicial Precedents and The Prevention of Insults to National Honors Act,1971
The Supreme Court seems to have not taken into consideration various other judgements over the years, such as the Suresh Kumar Gupta case where a PIL was filed to make it mandatory to play the national anthem before the start of work in the High Courts and District Courts which has dismissed saying that the sense of belonging is an inherent feeling and not a matter of compulsion and compared the National Anthem with the prayer to Divine which is done by an individual for personal benefits and the recital of National Anthem daily cannot be regarded as to instil any patriotism or sense of duty in the citizens. In the Bijoe Emmanuel Case, Supreme Court ordered that forcing to sing the national anthem is a violation of the fundamental right of freedom of speech and expression under Article 19(1)(a) as the children did not either cause any disturbances to those engaged in singing or insult the national anthem.
The Statement of Objects and Reasons of The Prevention of Insults to National Honours Act, 1971 states that the act has been implemented to prevent the over acts of insults and attacks on the national flag and other national symbols. Also, Section 3 of the said act makes it a crime to cause disturbance to anyone engaged in the singing of the anthem. Sitting at the time of the playing of the national anthem is in no way disturbing anybody else from singing or paying their honour to the national anthem. At the same time, an overt act is defined as an act that is intended to seriously harm or injure another person and accordingly, the act of sitting during the national anthem cannot be included within the ambits of the overt act and is merely an individual exercising their reciprocal right sunder Article 19 i.e. right not to speak even though it is not mentioned explicitly, as held in the case of Excel Wear Etc. V Union of India.
Following the same analogy, the right to expression under Article 19 should also include within it a right not to express. The expression of patriotism should be left to be an individual’s personal choice and ought not to be mandated through a decree or any law passed by the legislature which was the view of our constitution makes who made it a Fundamental Duty to respect the national anthem and did not prescribe specific standards such as being required to sing or stand to show respect.
Shelter of Article 51A
The Supreme Court in its judgement took shelter under Article 51A to direct individuals to compulsorily stand up when the national anthem is being played. The fundamental duties are not enforceable through writs and can only be used as a mechanism for the interpretation of ambiguous statutes. The Judgement thus made the Fundamental Duty enforceable with the powers vested in it through article 142 as non-compliance of the Judgement may attract contempt of court proceedings. “If the court is supposed to enforce respect for the National Anthem on citizens, it should also enforce the other fundamental duties in Article 51A,” said Justice Chnadrachud which was in complete agreement with the fact that Article 51A is very broad and among the fundamental duties citizens are required to develop humanism, develop scientific temper and a spirit of inquiry and the supreme court cannot enforce all these duties. The judgement gives a vague understanding which is capable of misuse and without giving notice of their actual meaning to persons of common intelligence, it leaves them in a sea of uncertainty.
The guidelines in the judgement make it mandatory to stand up for the national anthem when it is being played before the start of the feature film but remains silent and vague about when the anthem is being played as a part of the film. The judgement thus does not qualify as fair and reasonable but arbitrary. The central problem present here is the fact that by taking the patriotism test to the cinema halls, by forcibly feeding an old preconceived notion of nationalism to people who just wanted to have some entertainment, the court has not only offered an instance of judicial overreach but has also let down people who look up to it for the protection of constitutional freedom.
Shylashri Shankar who wrote a book on the supreme court said that the anthem ruling is a bit worrisome as it in a sense if putting its weight on the notions of nationalism and what it means to be an Indian. The rights and duties serve the purpose to constantly remind us that while the constitution has provided us with fundamental rights, it also asks the citizens to follow certain basic norms of democratic conduct but forcing the notion of patriotism and nationalism through these duties is completely an immoral act of the apex institution. With this judgement, the supreme court has somehow left behind the significant opinion of Justice OC Reddy which said that “No provision of Law is obliging anyone to sing the national anthem to show it respect and our tradition teaches us tolerance, our constitution preaches tolerance and let’s not dilute it.”
The compulsion to stand is not necessary for showing respect to the national anthem and being forced to take part in an arbitrary exhibition of nationalism is undemocratic as the basis of a free society is to allow everyone to freely and peacefully express themselves even if it includes the criticism of the government and when the government compels individuals to stand for the anthem it takes away a part of that freedom. The supreme court decision has wrongly equated standing with showing respect and appears to be non-concurrent with earlier precedent and freedom of speech and expression. The judiciary being an independent body is of supreme importance and the judges selected to be a part of that body should ensure that. It is of equal importance that the judges do not use this independence to create a judiciary which is populist rather than legal, undiscerning in its judgement, poor in quality and most important of all casual in its understanding when fundamental rights of the citizens are being violated.
The respect and love for one’s country or its national symbols cannot be forced upon the citizens as it has to be inherent and earned. Everybody has their own way to express their feelings and have the freedom to do so under Article 19(1)(a) of the Constitution and the same applies for the feelings of patriotism and nationalism. There cannot be a specific way to show them as some may do by standing while others might do it by joining the national forces or critiquing the government for its failures and holding them accountable on public forums. It is Fundamental Duty under Article 51A to show respect towards the national anthem and cannot be enforced upon the public given the very fact that Fundamental Duties are not enforceable.
The courts have taken shelter under the Constitutional Patriotism concept to give merit to their judgment when it completely takes it wrong by equating respect by standing up and has forced the preconceived ideals of patriotism and nationalism on the citizens instead of the ideals of the constitution which preaches tolerance and gives the citizens a right to stay silent and not to express. The Preamble of the Constitution of India speaks about the liberty of thought and expression and suppressing such liberty is a complete undemocratic act by the Judiciary whose main job is to provide justice to the people and protect their rights. Rabindranath Tagore the author of our national anthem had contentious opinions on nationalism and stressed on the importance of civil society and has expressed his dissent towards the bondage of nationalism”. He was of the view that unity of a society with different religions, cultures and traditions must be achieved by destroying the compulsion to display nationalism.
The Supreme court through the judgement has used its power to force this very concept of patriotism and nationalism on citizens of India, displaying an act of judicial overreach in times where the country is struggling and is dependent on the Judiciary for more landmark judgements such as the Vishaka case guiding positive changes in the society protecting the interest of everyone including the minorities and those who cannot voice their problems.
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 The Constitution of India 1950 Shyam Narayan Chouksey V Union of India (2018) 2 SCC 574  Ibid 2  Shyam Narayan Chouksey v UOI, 2016 SCC OnLine SC 1411  R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264  M.P. Jain, Indian Constitutional Law (8th edn, Lexis Nexis 2018) 1053  Müller, Jan-Werner. “A BRIEF HISTORY OF CONSTITUTIONAL PATRIOTISM.” In Constitutional Patriotism, 15-45. PRINCETON; OXFORD: Princeton University Press, 2007. Accessed May 9, 2020. doi:10.2307/j.ctt7t80r.4.  Pratap Mehta, ‘Unconstitutional Patriotism: Order On National Anthem Shows What Is Wrong With The Court’ (The Indian Express, 2016) https://indianexpress.com/article/opinion/columns/national-anthem-cinema-halls-supreme-court-order-unconstitutional-patriotism-4407560/ accessed 2 May 2020.  Krishnadas Rajgopal, ‘You Don’t Have To Stand Up At A Cinema Hall To Be Perceived As Patriotic: Justice Chandrachud’ (The Hindu, 2017) https://www.thehindu.com/news/national/you-dont-have-to-stand-up-at-a-cinema-hall-to-be-perceived-as-patriotic-justice-chandrachud/article19906645.ece accessed 2 May 2020.  Suresh Kumar Gupta v. State of Uttar Pradesh, AIR 2017 All 10  Bijoe Emmanuel & Ors vs State Of Kerala & Ors 1987 AIR 748  The Prevention of Insults to National Honours Act, 1971  Bryan A Garner, Black’s Law Dictionary (9th edn, 2009) 1214  Excel Wear Etc vs Union Of India & Ors 1979 AIR 25  Surya v Union of India, AIR 1982 Raj 1  Michael Safi, ‘Indian Court Orders Cinemas To Play National Anthem Before Films’ (the Guardian, 2016) https://www.theguardian.com/world/2016/nov/30/indian-court-orders-cinemas-to-play-national-anthem-before-films accessed 2 May 2020.  Ibid 11  Karun Sanjaya and Devika Praveen, ‘Supreme Court’s Forced Patriotism Versus Constitution’s Freedom Of Expression’, (2017) Journal on Contemporary Issues of Law Volume 3 Issue 9 accessed 02 May 2020
1. Yash Agarwal (Jindal Global Law School)
2. Himanshu Agarwal (Jindal Global Law School)