Tuesday 24 October 2017

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The National Anthem Order: Constitutionalism v/s showy patriotism

 

There is no precedent or legal reason to support the judgement except the temptation of the judges to keep up with the ruling political Joneses.


The Supreme Court of India speaking through Justice Dipak Misra and Amitava Roy outwitted the nationalist jingoism of Narendra Modi and the right wing social media diatribe by making it mandatory for all cinema theatres to play the national anthem before a movie begins. The two judges slaughtered constitutional morality and fundamental rights, bulldozed judicial process and consigned basic constitutional principles to the dust-bin to resurrect their subjective and dogmatic view by evolving what they termed as the doctrine of “constitutional patriotism”. When the biased obstinacy of a judge becomes the order of the Supreme Court, it perverts the constitution as the order is opposed to the spirit of the constitution. Commitment to the constitution is a facet of constitutional morality and the same gets erased when superseded by personal notions of public decency, morality, patriotism or nationalism of individual judges.

National anthem has its place of honour and solemnity in the hearts of all citizens. It is further reinforced by the Prevention of Insults to National Honour Act, 1971. Article 51(A) makes it one of the fundamental duties under the category of Directive Principles of State Policy. At the same time it is non-justiciable and unenforceable through courts. It is a part of common sense that standing during national anthem does not construe respect and sitting does not import disrespect. The Supreme Court making national anthem mandatory at venues of entertainment and leisure is abuse of power and unsustainable under the constitution. There are no special circumstances or any situation of national emergency necessitating the apex court to coerce people entering cinema halls to prove their loyalty to India and flag their patriotism. The remedy that the Supreme Court is providing to fan patriotism and nationalism is ephemeral and childish. By innovating what the judges called as ‘constitutional patriotism’, the apex court is evolving a principle of jurisprudence to destroy the basic structure of the constitution.

Interestingly, thirteen years back, Justice Dipak Misra had passed a similar order as the judge of the Madhya Pradesh High Court (2003) which was set aside by the Supreme Court. Judicial propriety demands that the same individual does not hear and deliver order on the same issue as if grabbing an opportunity to take a sweet revenge. Through such a conduct Justice Dipak Misra has reduced the esteem of the Supreme Court and shaken the public confidence in the apex judiciary.

Apart from making a travesty of the judicial process, the National Anthem order is causing damage to this banner of national honour by rendering the national anthem mundane. Being the order of the Supreme Court, it supplies oil to the “hate fire” of self-acclaimed nationalists to demean and hunt others as anti-nationals. The two judges authoring the unconstitutional order have also attempted to communicate that the Supreme Court judges can turn to political populism and toe the vicious line of the current political governors.

Under the Indian constitutional framework, the Supreme Court and the judges are expected to be “patriots” of the Constitution rather than join the band of fanatical patriots and nationalists who have become buoyant under the present political regime. The present Prime Minister of India is known to fake nationalism and fan emotions and dump critics and voices of dissent as anti-national and pro-Pakistan. It is understandable if the Supreme Court as the guardian of the Constitution recommends and appeals for the screening of the ‘preamble’ and the fundamental duties enshrined in the Indian Constitution in cinema theatres and its display at appropriate public places and offices. Making screening of national anthem mandatory at locations of entertainment for reasons enunciated by Justice Dipak Misra is a misuse of the shadow of patriotism and destroying the substance of the Indian Constitution. The order does not have any statutory backing. If it’s done on own volition, it’s different.

Just a game of Indian cricket exhibits passionate nationalism and Indians do not need judicial legislation to make Indian citizens patriots at the cost of constitutional ethics and fundamental constitutional principles. In the instant National Anthem case, it was in fact a ‘no ball’ thrown by the petitioner. It went wide well beyond the crease of the apex court. Despite this, the Supreme Court surrendered the wickets. There is no precedent or legal reason to support the judgement except the temptation of the judges to keep up with the ruling political Joneses.




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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

 

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