Supreme Court’s National Anthem Order: Forced Patriotism vs. Freedom of Expression

By Kasturika Kaumudi

This post discusses the Supreme Court’s order mandating playing of the national anthem in all movie theatres and the incongruities that emerge from it vis-à-vis freedom of expression. The post seeks to highlight the fundamental problem of making patriotism a forced expression.

In a widely criticized move, a Supreme Court bench ruled that it is mandatory for movie theaters to play the national anthem before the screening of every movie. The Court also cast upon all cinema goers the obligation to stand up during the national anthem in a cinema hall.

The purpose for the measure as cited by the Court was to ‘instill the feeling of committed patriotism and nationalism within one’. It is, however, difficult to understand how playing the national anthem, particularly at cinemas, which are essentially a recreational avenue, will guarantee patriotic feelings.

Patriotism and Freedom of Expression:

Patriotism is a very personal sentiment and an individual’s right to express it in her own way is ingrained in the constitutional right to freedom of expression. To fortify this argument a parallel can be drawn to the reasoning adopted by the Supreme Court in its 1986 ruling in Bijoe Emmanuel vs. State of Kerala. Here, the Apex Court had extended protection to children belonging to the Jehovah’s Witness sect, who had refused to sing the national anthem during a school assembly. The Court, while upholding the children’s right to freedom of speech and expression and right to religion categorically held, “..There is no provision of law which obliges anyone to sing the National Anthem…”

Similarly, the US Supreme Court in the landmark case of West Virginia State Board of Education vs. Barnette, held illegal a resolution that allowed schools to expel its students who refused to salute the flag and undertake the Pledge of Allegiance. The US Supreme Court held that forcing students to salute and recite the Pledge constituted compelled speech and violated the right to free speech and expression guaranteed under the First Amendment. The majority decision given by Justice Robert Jackson held,

“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. …We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

The tenor of the order of the Indian Supreme Court implies forced patriotism, while such mandated displays of patriotism go against the very grain of freedom of expression. The Court in Excel Wear Etc. vs. Union of India held that the fundamental right under Article 19 has reciprocal rights i.e. the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”. Correspondingly, the right to expression under Article 19 should also encompass within it a right not to express. The expression of patriotism should be left to an individual’s personal choice and ought not to be dictated through a decree or any other means like a government order or law. Furthermore, in this context, it is extremely pertinent to highlight Justice Jackson’s Barnette opinion on making ‘patriotic ceremonies’ a ‘compulsory routine’. He emphasizes that patriotic ceremonies should be voluntary and spontaneous instead of being a compulsory routine. To do so would be underestimating the institutions of free minds.

Constitutional Patriotism – a reasonable restriction under Article 19(2)?

In the present order, the Court seems to have sacrificed ‘individual rights’ at the altar of ‘constitutional patriotism’ when it held, “It 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.” While curtailing individual rights, the Court has used terms like ‘constitutional patriotism’, ‘nationalism’ and ‘patriotism’ liberally throughout the order without enunciating the variance in their import.

It has been argued that free speech and expression can be curtailed under Article 19(2) only by an existing law or a law made by the State and no other mechanism. In the absence of any law or constitutional provision to justify its actions, the Court has resorted to ‘constitutional patriotism’ as a justification to encroach upon the freedom of speech and expression of people.

‘Constitutional Patriotism’ is a concept borrowed from German jurisprudence. It denotes allegiance to constitutional principles as a means of fostering social cohesion and dwells on developing a common identity for all citizens over their individual religion, culture, tradition etc. According to this concept, constitutional principles should serve as the binding factor and nothing else. In this context, the Court’s rationale behind making it mandatory to play the national anthem as a means to ‘instil patriotism and nationalism’ is off the mark as the national anthem, if anything, is symbolic of the nation and not of the constitution.

In Bijoe Emmanuel, the Court clearly laid down that any regulation or curtailment of free speech and expression should have statutory backing and fall under the reasonable restrictions prescribed under Article 19(2). There can be no other basis for incursion into the ambit of fundamental rights. The Court’s recourse to ‘constitutional patriotism’, an extra constitutional principle, to restrict fundamental rights without any constitutional or statutory basis, sets a very dangerous precedent.

Deeming Fundamental Duties Enforceable

The Court has taken refuge of Article 51A of the Indian Constitution to direct individuals to compulsorily stand up during the national anthem as a ‘sacred obligation’. Article 51A(a) of the Constitution only casts a duty on the citizens to ‘abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem’ and does not prescribe specific standards such as being required to sing and/or stand to show respect. The Court has failed to note that though there is an inherent compulsion to comply with the fundamental duties, there is no legal sanction provided for the violation or non-performance of such duties.

Moreover, the Prevention of Insults to National Honour Act, 1971 (‘Act’) which has been referred to in the order does not mandate that a person must necessarily sing and/or stand during the national anthem. Section 3 of the Act merely criminalizes any act done intentionally to prevent the singing of, or causing disturbance during, the national anthem. By issuing the present order, the Court has effectively deemed this fundamental duty enforceable, non-compliance of which may attract contempt of Court proceedings. Furthermore, in the absence of any law prescribing punishment for not standing and/or singing the national anthem, the present order is a clear case of encroachment into the legislative domain.

As a fallout of the Supreme Court order, the Kerala police had arrested eleven people for showing disrespect to the national anthem by not standing up at an international film festival held in Thiruvananthapuram. Though the ‘accused’ were released on personal bail, they have been charged under Section 188 of the Indian Penal Code, which prescribes punishments for disobeying an order passed by a public servant.

Conclusion:

This order could spell disastrous consequences by giving teeth to self-appointed vigilantes looking to uphold the nation’s honour. There have already been several instances of such jingoism in the recent past which cause serious apprehensions regarding the enforcement and outcome of the Court order. Most recently, a paraplegic man was assaulted in a theatre in Goa for not standing up during the national anthem and a group of college students were manhandled and threatened for not standing up during the national anthem at a theatre in Chennai.

Curiously, on 2^nd December, 2016 a similar plea to make the playing of the national anthem mandatory in all Courts was rejected by the Supreme Court calling it an ‘overstretch’. Considering the interim order has been severely criticized, it will be interesting to trace the course that the matter takes on the next date of hearing which is 14^th February, 2017.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

The Dirty Picture Project: Dhoom 3

[Centre for Communication Governance at National Law University is running the Dirty Picture project that reviews blockbuster Bollywood films from a feminist perspective. This particular review is by law students but anyone who would enjoy this and is capable of carrying the work out is welcome to join in. Please do write at ccg@nludelhi.ac.in with ‘Dirty Picture Project’ in the subject line if you would like to be a part of the project.]

(By Bhargavi Vadeyar and Sanya Kumar)

Aaand the prize for the worst score on the Bechdel test goes to…you guessed it folks, it’s Dhoom 3! With only four named female characters, who never share screen time, let alone speak to each other, and with the motorbikes getting more on-screen presence than all the female characters combined, this film is a total no-no for gender equality.

Victoria: The Barbie

The blonde Victoria works for the Chicago police. You would think that having a female policewoman would be a good thing, but (surprise surprise!) she is never shown exercising her authority or doing anything meaningful to further the plot, while the two men, Jai and Ali, are constantly discussing the plan of action and giving her instructions. This is even stranger when you consider that she is the one with the only legal authority in Chicago; her motivations for continuing to help Jai and Ali when they fall out of favour with her own police department are never explained.

Obviously, unlike her male counterparts, she has to always wear revealing clothing and red lipstick, which seem to attract more attention than her almost non-existent dialogues. She appears all of 9 times in the movie, in which she speaks one word once, one line twice, five lines once and not even a single word on five occasions. Even though she is one of the main female protagonists (not that that’s very difficult in a cast with only four named female characters), in the movie she has a total screen presence of only 296 seconds.

She has no personality; we are introduced to her only when she meets Ali and Jai. In that scene, it is immediately signalled that she exists solely for the men (and the viewer) to ogle at. She drives up on a motorbike and shakes her hair in slow motion while Ali and Jai check her out from head to toe. When she introduces herself, they both flirt with her immediately. A major portion of Victoria’s screen presence involves featuring in Ali’s perpetual fantasies about marrying her and fathering his children, which start exactly four seconds after he sees her for the first time. In all of these fantasies, Victoria is (naturally) wearing skimpy clothing, ranging from a bikini to the Marilyn Monroe blowing-in-the-wind-dress, to further sexualise her image.

Furthermore, it is clear that she does not return Ali’s interest in her, but the film makes this into a running joke. For example, when Ali shares a chair with her, she is visibly uncomfortable, but again, this is meant to be comic relief. This sends the troubling message that it is somehow alright to pursue and even to borderline sexually harass a woman, even when she does not return your affections.

Aaliya: The Asian Goddess who Sings and Dances like Liquid Electricity

Aaliya is the main female protagonist in the movie, whose role is full of oomph but pretty hollow otherwise. Her role is mostly limited to two sexualised song numbers, her circus antics and a romantic subplot in Samar’s dreams. The objectification of women in the movie is more than evident when Aaliya is used as a means by the police to catch the two thieves; she appears on the bridge in the final scene, appearing to be a device to convince Samar to turn himself in.

The most memorable part about her role in the movie is definitely her audition (read: strip tease), rather than anything she says. She begins in overalls but ends up not wearing much more than a bra and a pair of shorts. At one point, she has a strip of cloth wrapped around her torso; she gives one end of the strip to Sahir and spins around so that he, in effect, undresses her, which we find creepily reminiscent of Draupadi’s disrobing in the Mahabharat.

But let’s give this painful movie some credit for having implied that she takes over the Great Indian Circus at the end of movie, thereby suggesting that she could be more than just a love interest for the two brothers. She definitely has some personality, and is ambitious and determined, which she proves in her audition (by stripping, of course – it’s still Dhoom 3!).

The Best of the Rest

The other two speaking characters are Rina Ray, a reporter, and Jennifer, a bank teller. Don’t worry if you can’t remember who they are – Rina Ray, who interviews Jai, Victoria and Mr. Anderson, has a total screen presence of 136 seconds. Jennifer, the bank teller, accompanies Sahir to the locker and has a screen time of 112 seconds in which she asks about his general well-being and makes a comment about her boyfriend. The fact that we’ve included these two as one of the four named female characters shows just how misogynistic the movie is, and how underrepresented women are in it.

In Summation

Dhoom 3 is the movie that gives feminists sleepless nights; for the most part, the women in the movie exist to be either objects of desire or love interests. Mr. Anderson, in his attempt to ridicule the circus, has given us an apt description of this sickening movie: “Circus [Dhoom 3] is a woman in a short skirt putting her head into a hippo’s mouth. Circus [Dhoom 3] is stupid; that’s what people pay money for.”