On 30th November 2016, the Supreme Court of India issued an interim order laying out seven directives to be followed marking respect for the National Anthem of India. These included the requirement for all to stand whenever the national anthem was played as well the compulsory playing of the national anthem at all cinema halls before every screening. The directives were issued with an intent to ‘instill a sense of committed patriotism and nationalism’ and that people were ‘duty bound to show respect to National Anthem as a symbol of Constitutional Patriotism’.
In an expected fallout of this interim order, criminal charges are being slapped on people for not complying with an order that has no legal standing. The order invokes article 51(A) of the Constitution stating it is the Fundamental duty of every citizen to respect the national anthem. While Fundamental duties are in form of directives to be followed and no one can be prosecuted for its non-abidance, even the law on the Prevention of Insults to National Honours Act does not legally support the demands of this order. Section 3 of the law penalizes the act of ‘intentionally preventing the singing of the Indian National Anthem or causing disturbances to any assembly engaged in such singing’ which nowhere amounts that any person can be legally charged for not standing for the anthem.
Despite there being no legal basis, reports of people being charged for violating Supreme Court directives are coming in from different parts of the country. On 12th December, twelve persons were arrested for not standing when the national anthem was played before the screening of a film at the ongoing International Film Festival of Kerala in Thiruvananthapuram. The persons were charged and arrested after the activists of Bharatiya Yuva Morcha, youth wing of BJP, complained to the DGP against their ‘anti-national’ act. A day before on 11th December in Chennai, a group of college students were manhandled and threatened inside a movie theatre because they didn't stand when the national anthem was playing before the film. A group of 20 men attacked and thrashed four boys and four girls and called the police. The police registered a case against these college students for disrespecting the national anthem while no action was taken against the attackers for use of violence. In a related event a writer and theatre activist Kamal C Chavara was arrested by the Kerala Police on 18th December on charges of insulting the national anthem in a Facebook comment. The arrest followed the filing of a complaint by the same Bhartiya Yuva Morcha. The Facebook comment was an excerpt from his already published novel about which no noise had been made until the Supreme Court order. Chavara was charged for sedition for his post but after much criticism of the action from all quarters, the police has decided to initiate the process of dropping of sedition charge against him. The fact that the order nowhere describes what must be done at the instance of its non-compliance, is in effect allowing for such arbitrary criminal charges like the one on Chavara and even greater scope for the right-wing forces to incessantly attack people in the name of vigilante nationalism.
Such instances of recourse to legal proscription by the state executive in complicity with the rights wing forces to penalize what they construct as ‘anti-national activities’ is not new. In 2014, Md. Salman a boy from Kerala was arrested and charged for sedition and denied bail for months for not standing up for the national anthem in a theatre. What is new and dangerous, with this Supreme Court order, however, is the judicial sanctification of the attempt of the state executives to curb fundamental and political freedoms in the name of nationalism. This enforced display of nationalism that comes from the Supreme Court violates its own verdict in the case of Bijoe Emmanuel (1986) stating that ‘there is no provision of law which obliges anyone to sing the national anthem’ when a group of school students refused to sing it as their religion did not allow them to.
PUDR is concerned at this growing political climate in which the judicial verdicts have been echoing the executive actions in creating an official discourse of state-centred nationalism, even the slightest defiance of which invites both legal and social prosecution. This will shatter the belief in judiciary as an independent institution and diminish hope in approaching the courts as the custodian of the rights of the people in the wake of their violations in the hands of the governments. PUDR believes that such judicial orders enforcing nationalism constricting our freedoms in the name of constitutional patriotism are an anathema to the democratic ethos of the nation as they go against the very rights the Constitution guarantees us. We condemn the order and demand its revocation. PUDR also strongly condemns the police actions and slapping of charges against people in the wake of the Supreme Court order and demands immediate withdrawal of these cases.
Anushka Singh and Cijo Joy