A Surya Prakash
The recent order of the Supreme Court, directing all cinema halls in the country to play the National Anthem before the commencement of the show, has triggered widespread debate among jurists and political commentators, with several of them arguing that the court had outreached itself and taken a position that is violative of the fundamental rights of citizens. Some of them have even argued that it may be difficult to enforce the order. The critics say that showing respect to the National Anthem is one thing and insisting that it be played in every cinema hall in the country, is quite another.
While there may be some merit in the argument that the court need not have gone so far as to direct that the National Anthem be played before the show in every cinema hall, the court’s order must be seen in the light of the intense political discourse in recent years over the claims of some sections of the citizenry that their religious beliefs prevent them from accepting India as their ‘motherland’ or from singing the National Anthem. It is also significant because of its emphasis on the fundamental duties of citizens.
The order, which has stirred a controversy, directed all cinema halls to display the national flag on the screen while playing the National Anthem and said that all persons present in the hall are obliged to stand up and show respect to the anthem. This protocol, it said, had its roots in “national identity, national integrity and constitutional patriotism”. The court said respect for the national anthem and the national flag reflects “love and respect for the motherland” and it instills a feeling of “patriotism and nationalism”.
Some observations made by the apex court in this order are quite distinct from an earlier judgement of the court on the issue of showing respect to the National Anthem. In 1985, three children belonging to a sect called Jehovah’s Witnesses were expelled from a school in Kerala for refusing to sing the anthem. The students stood in respectful silence along with other children in the school assembly, but refused to sing the anthem because it was ‘against the tenets of their religious faith’. When their appeal to the High Court failed, they moved the Supreme Court. In this case – Bijoe Emmanuel & Others versus State of Kerala & Others – the court held that the expulsion order infringed the fundamental rights of the students under Articles 19(1)(a) and 25(1), who, “because of their conscientiously held religious faith” do not join the singing of the National Anthem. The action taken against them “is a violation of the fundamental right to freedom of conscience and freely to profess, practice and propagate religion”.
The court noted that the stand taken by Jehovah’s Witnesses was not peculiar to India. In other nations, members of this sect refuse to vote or run for public office or serve in the Armed Forces. They refuse to salute the flag, stand up when the National Anthem is played or recite the pledge of allegiance, because their religious beliefs forbid them to do so.
The court said that the real test of a true democracy was the ability of even an insignificant minority to find its identity under the country’s Constitution. This has to be borne in mind in interpreting Article 25. It also touched on the fundamental duty to respect the national anthem and said proper respect is shown when a person stands up when the anthem is sung. “It will not be right to say that disrespect is shown by not joining in the singing.”
As regards the Fundamental Duties of citizens, the opinion of the Bench that passed the recent order, is distinct from the views of the Bench that heard the Emmanuel case. In the recent order, the court cited Article 51(A)(a) of the Constitution, dealing with Fundamental Duties, which reads as follows: “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”, and said this made it crystal clear that it was the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution – and one such ideal was respect for the National Anthem and the
national flag. The court said, “It does not allow any different notion or the perception of individual rights… the idea is constitutionally impermissible.”
However, in the Emmanuel case, the court did not come out so strongly. It said proper respect was shown when a person stood up when the anthem was sung. “It will not be right to say that disrespect is shown by not joining in the singing.”