SC order on anthem: bizarre, wrong

The Supreme Court’s ruling that the national anthem should be played in all cinema halls and that everyone should stand up to show respect to it is wrong in many ways. In the first place, the court should not have preoccupied itself with a matter like the singing of the anthem and laid down rules about the conduct of people. It went beyond its jurisdiction and powers in issuing the directive, and the order will be seen as an ill-considered example of judicial legislation. The courts should only interpret laws and not make them. It is also not its job to prescribe ways to “instil patriotism and nationalism.” The relationship that it makes out between the national anthem and nationalism is also wrong.

National symbols like the anthem and the flag derive their power and potency from the citizens’ spontaneous relationship with them. To coerce the people into honouring them is being authoritarian and undemocratic.The Constitution says respect for the national flag is a fundamental duty, but it is not justiciable. That means it cannot be legally enforced. The court seems to have ignored not only this but also an earlier judgment which clearly said that ‘there is no provision in law which obliges anyone to sing the national anthem’. The 1986 ruling had found the dismissal of three children from a Kerala school, who had refused to sing the anthem as it went against their religious beliefs, wrong and untenable. The court said that the dismissal was a violation of the fundamental right to freedom of conscience and religion. It is surprising that the court, which has affirmed and expanded the fundamental rights and freedoms of citizens, has tried to curb them with this ruling. Other democracies have placed fundamental freedoms above respect for symbols. In an important judgment in 1989, the US Supreme Court refused to punish a person who had burnt the national flag because it said his action was protected by freedom of speech guaranteed by the First Amendment of the Constitution.

There are too many new tests of nationalism and patriotism in the country, and the singing of the anthem need not be added to the list. It will give super patriots one more issue to brand people anti-nationals and harass them. It was only recently that an MLA who refused to chant Bharat Mata ki Jai was suspended from the Maharashtra Assembly. The ruling is difficult to be implemented too, and it may led to scuffles and violence in cinema halls. The court also has not said why its order is applicable only to cinema halls and not to other assemblies.