The apex court’s National Anthem order is not only bizarre, but is un-implementable and unenforceable. It is expanding its role and deciding it is at once lawmaker, rule-enforcer, adjudicator, and now moral guardian.
It is only a matter of time before the Supreme Court ends up modifying its order to play the National Anthem before each screening of a film in a movie theatre anywhere in the country. Not only is the order bizarre, it is un-implementable and unenforceable.
The court has directed that everybody present in the movie theatre should stand to attention and doors should be locked to prevent people from going out or coming in. Latecomers to the movie, never mind if they are legitimate ticket buyers, need to wait outside, with the doors locked, till the national anthem is over.
Other than the fact that locking doors is a contravention of safety norms upheld by the courts themselves, how does the judiciary imagine this rule will be maintained throughout the country? What if the odd person in a hall decides not to stand to attention? Is the manager or owner of the movie theatre then obliged to call the police and file an FIR? Will the police come in, interrupt the film — which surely would have begun by then — and take away the person in row A, seat 17, who the manager has complained did not stand to attention while the anthem was being played?
What is so special about the cinema? A logical corollary to this order is a public interest petition calling for the National Anthem to be played before the commencement of any form of entertainment — why just a film? As such, plays, rock concerts, mushairas, thumri recitals, not to speak of football matches and Indian Premier League games, should also have the National Anthem playing before they start, with it being mandatory for everyone present in the auditorium or stadium or other venue to stand to attention. What should be a deeply meaningful and moving moment for the citizen — standing to attention and singing the National Anthem on a special occasion — will be reduced to symbolism and farce.
The order on the National Anthem is a milestone in judicial overreach, and for two reasons. First, to frame rules that may require the National Anthem to be played before a screening of a film is in the domain of the executive, specifically in the domain of a State or city Government. It is not the judiciary’s job to in effect legislate. In the classical tradition, it should merely decide whether a given policy is legally and constitutionally correct or otherwise. Yet, the Supreme Court has legislated time and again, and the National Anthem issue is only the latest.
Second, the judiciary has taken upon itself the role of the custodian of national values: Of recognising patriotic credentials and promoting the moral and moralising aspects of the Indian state. Quite apart from the sense that these aspects of the Indian state are by themselves often an encroachment on the rights and autonomy of individual citizens and civil society, the judiciary has now decided that only judges — not the executive, not Parliament, not civil servants, not elected politicians — can be trusted with these.
This is unfortunate because in the past 20 odd years, India, Indian-ness and the Indian sense of nationhood has been finally, slowly getting over its annexation by the state. “Popular sovereignty” literally means sovereignty vests with the people. In India, since 1947, it was tweaked to mean sovereignty vests with the Government. The Government became the custodian of India, of the well-being of India, of the idea of India. This made, for instance, August 15 or January 26, a bureaucratic chore, rather than a genuine celebration of common people and ordinary families.
Patriotism was rendered a sort of public sector status, run by the proverbial Joint Secretary in the Ministry of High Culture. The protocols and procedures of the administrative matrix became far more important than the self-propelled energies of normal, everyday Indians. This made the flag and the National Anthem, and all the cherished emblems of our national persona, monopolies of the state: To be used and decided upon by the Government of the day.
It has taken a long time and much effort for Indians to reclaim their symbols and their flag from the Government. The freedom to proudly fly the national flag itself was constricted and contested by the Government till the Flag Code was amended, ironically following a citizen’s battle in the courts in the 1990s.
In 1962, in the aftermath of the Chinese invasion and just 15 years into a still precarious and tentative freedom, the Government instituted the practice of playing the National Anthem at movie theatres. It was an instinctive response to conditions and emotions that were immediate and reflected the nervous anxieties of a still-young nation.
Today’s India is very different and that much more confident. It doesn’t need to give itself such reassurance on a daily basis. Certainly it doesn’t need the state to drive home the idea of loving the country, and prescribing the specific mode of loving the country.
Should such a diktat have come from a self-important bureaucrat or a buffoonish Minister, the arguments against it would have been familiar and easy to make: That the public official in question is clinging to an outmoded relationship between Government and citizen, and refusing to let go of powers that his or her predecessors may have enjoyed but that are unacceptable today.
When the judiciary makes this role its own, however, the problem is compounded. It is not clinging to an authority that was once its preserve and should no longer be. It is actually expanding its role and deciding it is at once lawmaker, rule-enforcer, adjudicator, and now moral guardian. Far from separation of powers, this is enlargement of powers — including into areas that should be beyond not just the judiciary but even the executive and legislature.
This commentary was first published in The Pioneer and can be found here
The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.
PREV
