National Anthem Order: Testing On The Parameters Of Judicial Ethics, Judicial Process & Indian Constitutional Principles

The order of the Supreme Court in Shyam Narayan Chouksey v. Union of India (popularly being referred as the “National Anthem Order”) has been a topic of continuous debate. Some opinions being expressed are so critically strong that it has even started a debate between stalwarts of Indian academia. In its 5-page order, the Division Bench of the Supreme Court, comprising Justices Dipak Misra and Amitava Roy, had made it mandatory for all cinema theatres to play the national anthem before a movie begins during which the national flag is to be shown on the screen, and that the National Anthem shall not be commercially exploited to gain any financial advantage. With an attempt to discuss the merit of the order (which might seem to be repetitive initially), this article tests the National Anthem order on the parameters of judicial ethics, judicial process and Indian constitutional principles.

Judicial Ethics

As reported by LiveLaw, the listing proforma filed by the petitioner, Mr. Chouksey, had pointed it out carefully that this matter must not be listed before Justice Dipak Misra, while categorically stating that Justice Misra had passed the order in the matter when his Lordship was Judge, High Court of M.P. at Jabalpur. Despite this approach, the matter was posted before Justice Misra, owing to the fault of Supreme Court registry. Even if the matter came before Justice Misra by mistake, he ought to have rescued himself from the case on ethical grounds. Instead of doing it, he went ahead to pass on similar guidelines, which he had passed 13 years ago as a M.P. High Court judge. The judgment delivered by Justice Misra in 2003 also echoed the “same sentiments” which are reflected in the National Anthem order. An appeal against the High Court judgment was then filed before the Supreme Court, which allowed the appeal and set aside the order of the High Court (authored by Justice Misra).

In State of West Bengal v. Shivananda Pathak, it was held that:

“If a judgment is over-ruled by the higher court, the judicial discipline required that the Judge whose judgment is over-ruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, re-write the over-ruled judgment. Even if it was a decision on a pure question of law which came to be over-ruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher court which has over-ruled that judgment, not only binds the parties to the proceedings but also the Judge who had earlier rendered that decision. That Judge may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy.”

The judiciary as an institution is vastly respected. It is therefore submitted that Justice Misra should have disassociated himself from that Bench in keeping with the high traditions of the institution so as to give effect to the rule that “justice should not only be done but should manifestly and undoubtedly be seen to be done”.

Judicial Process

The renowned American jurist, Benjamin Cardozo, in his classical book ‘Nature of the Judicial Process’, while talking about the significance of constitution and statute as sources of the law, has said:

“The work of a judge in interpreting and developing them has indeed its problems and its difficulties, but they are problems and difficulties not different in kind or measure from those besetting him in other fields… Sometimes the rule of constitution or of statute is clear, and then the difficulties vanish. Even when they are present, they lack at times some of that element of mystery which accompanies creative energy. We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case… The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books… Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn.”

Section 3 of the Prevention of Insults to National Honour Act, 1971 states: “Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.” The supplementary Home Ministry’s Rules, which are to be read with the Act, mandate that one must stand to attention whenever the anthem is played. However, they do not provide for any specific penalty for not standing up.

In the National Anthem Order, the Division Bench refers to Fundamental Duties as prescribed under Article 51A(a) of the Constitution. As per the said article, it is the constitutional duty of every Indian citizen “to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”. It has been argued that: “Standing during the national anthem does not necessarily mean respect for the national anthem. Nor does sitting during the anthem mean disrespect or qualify as a crime. What qualifies as crime is a “wilful act” committed to insult the National Anthem.” Moreover, the Fundamental duties are in the nature of a code of conduct. They are unjusticiable; there is no legal sanction behind them. Even the framers of the Constitution did not deem it appropriate to incorporate those duties in the text of the Constitution when it was originally promulgated.

It would be of paramount importance here to quote what Justice O. Chinnappa Reddy had endorsed in Bijoe Emmanuel v. State of Kerala: “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. If there are any circumstances which permit an exception, they do not now occur to us.”

By enforcing that “a time has come, the citizens of the country must realize that they live in a nation”, the Division Bench clearly did opposite to what Justice Reddy had held. The reasoning in the National Anthem also seems to be vague. There is no connection “between the remedy sought and the remedy provided”. Therefore, it is submitted that the order is a case of abuse of judicial process. 

Indian Constitutional Principles

The National Anthem Order is also a topic of debate as it has tried to introduce a new doctrine in Indian jurisprudence, i.e. Constitutional Patriotism. As per the order, the concept of protocol associated with the National Anthem has ‘its inherent roots in National identity, National integrity and Constitutional Patriotism’. It further stated that the National Anthem is the symbol of the Constitutional Patriotism and inherent national quality. The Apex Court goes to the extent of asserting that Constitutional Patriotism “does not allow any different notion or the perception of individual rights, that have individually thought of have no space.”

This approach and assertion by Supreme Court is quite contrary to the Indian Constitutional Principles. The noted constitutional historian, Granville Austin, in his book ‘Indian Constitution: Cornerstone of a Nation” has called the Indian Constitution a “social document” and that the core of the Constitution lies in Fundamental Rights and Directive Principles of State Policy, which are the “conscience of the Constitution” (Page 63 of the book). By holding that constitutional patriotism does not allow any notion of individual rights, the Supreme Court has violated the basic principle of the Indian Constitution, as summarized by late Granville Austin. Moreover, the Supreme Court seems to have misunderstood the original concept of Constitutional Patriotism, which “designates the idea that political attachment ought to centre on the norms, the values, and, more indirectly, the procedures of a liberal democratic constitution”.

It is further submitted that in any case, the working of Indian Constitution depends upon the bedrock of Constitutional Morality, and not on Court’s concept of Constitutional Patriotism. Interestingly, it was Justice Dipak Misra, himself, who, while speaking on behalf of a five-judge Constitution Bench decision in Manoj Narula v. Union of India, had held:

“The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a Constitution made for a progressive society. Working of such a Constitution depends upon the prevalent atmosphere and conditions. Dr. Ambedkar had, throughout the Debate, felt that the Constitution can live and grow on the bedrock of constitutional morality…”

While discussing Constitutional Morality, Justice Misra had held:

“The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality.”

Reference must also be given to what Dr. Ambedkar had said, while moving the Draft Constitution in the Assembly (Constitutional Assembly Debates: Official Reports Vol.VII: November 4, 1948, page 38):

“While everybody recognized the necessity of diffusion of constitutional morality for the peaceful working of the democratic constitution…it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution.”

It is therefore submitted that the National Anthem order by deviating from Constitutional Morality goes against the spirit of the Constitution and in a way tends to pervert the Constitution, against which Dr. Ambedkar had warned. Moreover, Justice Misra’s reasoning in the order seems to be contrary to his own assertion in the Manoj Narula judgment.

Conclusion

Unlike fundamental rights which extend to everyone, irrespective of Indian or foreign citizen, the fundamental duties are restricted to Indian citizens only. But, as per National Anthem order, “all present in the hall are obliged to stand up to show respect to the National Anthem”. Therefore, a question arises whether the Indian state will now enforce allegiance of its Anthem on foreign nationals, if, present in Cinema halls as well, who are not bound to do so. How will the Indian state protect the foreign nationals in such situations from its police and goons (who claim to promote Indian nationalism).

The fundamental duties encompass both moral and civic duties. Respecting the National Anthem is a civic duty of a citizen which implies that volunteerism is the basic feature of such duties. In a democratic setup, the willing and collective cooperation and the confidence of people must be strived upon, rather than being enforced by judicial process. The National Anthem order seems to suggest that the Supreme Court’s confidence on Indian citizens, who watch movies, is shaken and doubted.

Moreover, by invoking a vague concept as “Constitutional Patriotism”, the Supreme Court might lead towards following the path of judicial inconsistency, which it does while invoking the mythical concept of “collective conscience” in Indian death penalty jurisprudence.

Clearly, the National Anthem order fails on the parameters on judicial ethics, judicial process and constitutional principles. It is concluded with the assertion that deviation from the basic Indian constitutional principles is disrespect to the National Anthem itself.

Anuraj Bhaskar is a  9th Semester Student, B.A. LL.B (Hons.), Dr. Ram Manohar Lohiya National Law University, Lucknow and Jyoti Gautam Student, 9th Semester Student, B.A. LL.B (Hons.), Dr. Ram Manohar Lohiya National Law University, Lucknow.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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