Forsaking Constitutional Morality At The Altar Of Constitutional Patriotism?

On 29^th November the President elect of the United States of America (US), Donald Trump tweeted “Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!” The statement made by Donald Trump is significant because it goes against the Bill of Rights enshrined in the US Constitution as interpreted by the Supreme Court of the United States of America, which had in Texas v. Johnson (1989) held that flag burning constitutes a form of "symbolic speech" that is protected by the First Amendment of the US Constitution which protects the right to freedom of speech and expression. The majority (5:4) noted that freedom of speech protects actions that society may find very offensive, but society's outrage alone is not a justification for suppressing free speech. The Court therefore declared the Texas statute that prevented the desecration of a venerated object, including the American flag, unconstitutional. Incidentally the Court order also invalidated the prohibitions on desecration of American flag enforced in 48 of the 50 States of US. These events are not only reflective of the apparent conflict between the Government and the Judiciary in the US on the issue of the extent of freedom of speech and expression but it also reflects the resolve of the US Supreme Court to guard against the Government’s intrusion into what it considers, is the constitutionally guaranteed right of the US citizens.

Yesterday’s order of the Supreme Court of India in Shyam Narayan Chouskey v. Union of India, making it mandatory for all the cinema halls in India to play the National Anthem before the feature film starts and obliging all present in the hall to stand up to show respect to the National Anthem, when viewed in the backdrop of the judgement in Texas v. Johnson appears to be highly regressive. But one must not get carried away and lose sight of the cultural relativity that marks the US and Indian societies. The Bill of Rights or Civil and Political rights despite its onerous claims of it being universal in content, is not so in reality. Nevertheless, the enormity of divergence on the permissible extent of the freedom of speech and expression in India and US simply passing on under the pretext of cultural relativity is certainly discomforting. However, what is even more remarkable is that instead of deciding the permissibility of measures sought to be enforced by the Government, the Supreme Court of India itself ventured into the realm of desirability, which otherwise is not the realm of function for the courts and thereby made significant inroads into the sphere of freedom of speech and expression of Indian citizens. One can legitimately ask the question, whether reasonable restrictions on the right to freedom of speech and expression under Article 19(2) of the Indian Constitution can even be imposed by the courts in the name of, to quote the Supreme Court “constitutional patriotism”. The Supreme Court of India has been called illiberal by many for allowing measures like death penalty and criminalisation of homosexuality to remain on the statute book but yesterday’s judgement of the Supreme Court is even more alarming because the Court itself is now deciding the desirability of the realm of freedom of speech and expression in our polity by curtailing it, with the regrettable gleeful acquiescence of the Central Government represented by the Attorney General of India in the Court.

The Supreme Court in one of its earlier judgments in Bijoe Emmanuel v. State of Kerala (1986) while declaring unconstitutional the expulsion order passed by a school Headmistress on the instructions of Deputy Inspector of Schools of the Government against three school children of Jehovah witnesses faith for refusing to sing the National Anthem while standing during the morning assembly in their school, had observed that the two circulars passed by the Director of Public Instruction, Kerala making it mandatory for all the school to sing National Anthem everyday have no statutory basis and are mere departmental instructions which cannot therefore curb the right to freedom of speech and expression. The Court recognised that any inroads into the ambit of the right of freedom of speech and expression under Article 19(1) (a) of the Constitution must have a statutory basis first and only then its reasonableness needs to be examined. The judges then must not have envisaged that the basis for reasonable restrictions under Article 19(2) can even be a court order. Our Constitution does not contemplate abridgement of the ambit of fundamental right by courts and therefore it has not provided any remedy for it. Permitting what is constitutionally impermissible by the courts otherwise desired by the Government is one thing but the court desiring what is constitutionally impermissible is certainly, far more disturbing.

The petitioner in the yesterday’s Supreme Court order, as revealed from the order itself has nowhere demanded that the National Anthem must be played in the cinema halls. In fact Justice Dipak Misra who wrote the order writing the contention of the petitioner in his order writes that “It has been averred in the petition that sometimes National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law. The emphasis is on showing requisite and necessary respect when the National Anthem is sung or played. The assertion is that it is the duty of every person to show respect when the National Anthem is played or recited or sung” This clearly reveals that even the petitioner only wanted that the National Anthem must be respected as ordained by the law, when it is played, recited or sung. Petitioner, at least from the written order of the court did not demand the playing of National Anthem at certain places. The order appears to be bad, also because of the fact that there is no logical link between the remedy sought and the remedy provided. The observations made by the Court do not support the mandatory guidelines given by the court. Logical consistency is the least that one expects from the Apex Court of the land in its orders, but even that appears to have been forsaken by the court in its own quest of instilling the sense of patriotism and nationalism in the citizens of India.

This order of the Supreme Court has mainly been analysed so far from the point of view of the rights of people who go to watch the movie, but what about the rights of those who own and run the cinema halls? Why should they be singled out and forced to make arrangements to play the National Anthem before every show with the National Flag on the screen? The order does not even make an attempt to address these questions. From constitutional morality, this order of the Supreme Court has taken us to constitutional patriotism; one wonders whether the two terms are same or different. However, since this is an interim order, we must sincerely hope that the better sense would prevail and eventually the follies of this order made by the Court would be rectified.

Manwendra Kumar Tiwari is an Assistant Professor in Dr. Ram Manohar Lohiya National Law University, Lucknow.

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