With the meaning of the word “respect” having been defined for us by the Honorable Supreme Court of India, it is pertinent to also look at the ‘’lawfulness’’ of the said judgment. The only reason I feel this is pertinent is because we are talking about a “Court of Law” here. In commonsensical understanding, a Court of Law would be expected to issue judgments that seek to uphold the implementation of a particular Law. The purported Law in question, in the extant case, is The Prevention of Insults to National Honour Act, 1971. I am quoting below, verbatim, the exact provisions of this Act, with respect to the National Anthem:
Section 3 of the Act 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 be extended to three years, or with fine, or with both.”
Section 3A of the Act (Inserted vide The Prevention of Insults to National Honour (Amendment) Act, 2003), states that, “Whoever having already being convicted of an offence under Section 2 or section 3 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term, which shall not be less than one year.”
As is amply clear from the above, the provision in Law that the Honourable Court is seeking to uphold is itself non-existent.
An invocation to “Fundamental Duties” as specified in Article 51A of the Constitution has also been made in the said judgment. Incidentally, these Fundamental Duties were a subsequent addition to the Constitution. This Article was added to the Constitution vide the 42nd Amendment Act in the year 1976 (during the prevalence of Emergency in the nation). Co-incidentally, this Amendment Act has been the most controversial one in the history of the independent nation, primarily because it sought to strengthen the Executive and weaken the Judiciary, thereby tinkering with the delicate “balance of powers” of the three organs of the State. The only intent of highlighting this piece of information here is to underline the fact that the Fundamental Duties were not a part of the Original Constitutional document and secondly, these were included in the Constitution by the Act which was the definition of Executive over-reach. Interestingly, one of the provisions included in the Constitution by an act of Executive over-reach against the judiciary, is now being invoked by the Judiciary in a judgment that ranks among the top in the ones defining Judicial over-reach. The only difference between then and now is that the Judiciary had opposed the 42nd Amendment Act tooth and nail then, but the Executive today is delighted and is promoting this act of Judicial over-reach, to the best of its abilities.
I am in no way trying to mean that the very act of amending the Constitution itself is questionable and should not be resorted to. On the contrary, it is a necessity. No document, be it the Constitution of the nation, can be fossilized in time and space. It has to be a living document, changing with the needs of the time. 42nd Amendment has been questioned only because of the manner in which it was forced upon the nation. The addition of Fundamental Duties was only a small portion of the sweeping changes that were sought to be brought about through this undemocratic Act.
Yet again, nothing in the above is to suggest that Fundamental Duties should not be a part of the Constitution. The question here is the interpretation we want to attach to these and the manner in which these shall be implemented and invoked. Let me first refer to Clause (a) of Article 51(A) of Part IVA of the Constitution, which states the Fundamental Duty in question here:
“It shall be the duty of every citizen of India – (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.
The Honorable Supreme Court has, in its judgment, interpreted the abovementioned Duty as follows:
“From the aforesaid, it is clear as crystal that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag. Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality…..”
The judgment does not take the pains to decipher any of the following to us ignorant beings:
How does mandatory playing of the National Anthem in cinema halls amount to showing respect to the National Anthem?
How is showing of respect related to standing up or sitting down?
What is the meaning of the term “Constitutional Patriotism”?
What does one mean by the term “inherent national quality”?
Also, if the ‘’non justiciable’’ fundamental duties deserve a mention in a Supreme Court judgment that all the citizens need to abide by, then I would like to mention below only a couple of other Fundamental Duties which deserve the same level of abiding by:
To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women
To develop the scientific temper, humanism and the spirit of inquiry and reform
My humble plea to the Honorable Supreme Court is to kindly consider passing some landmark judgments forcing the citizens of India (including those in power), to abide by the abovementioned Fundamental Duties in letter and in spirit. Abiding by only these two duties will amount to nothing less than a revolution (to say the least).
In the end, I would also like to make a mention of certain Orders of the Ministry of Home Affairs. I extracted these from their website. These are titled “Orders relating to the National Anthem of India”. In the first Para, this document talks about the full and short versions of the anthem. It envisages the playing time of the full version to be of about 52 seconds and the short version to be of about 20 seconds. I would request the Ministry of Home Affairs to depute its personnel to all the cinema halls of the nation and see for themselves the various “creative” versions of the National Anthem being played in each one of them (which actually are not complying with these Orders). Paragraphs II and III talk about “Playing of the Anthem” and “Mass singing of the Anthem” respectively. Nowhere in these is a mention of cinema halls as appropriate or necessary places for playing of the Anthem. Paragraph V (1) states, “Whenever the Anthem is played, the audience shall stand to attention….”. This is the only place where ‘standing in attention position’ is mentioned with respect to the National Anthem. However, two observations need to be strictly noted in this context. Firstly, these are Executive Orders, not calling for invocation of penal provisions in case these are not followed. Secondly, I would like to mention verbatim the next very clause mentioned in the same Paragraph, which states, “As in the case of flying of the National Flag, it has been left to the good sense of the people not to indulge in indiscriminate singing or playing of the Anthem.” I leave it to the Readers’ good sense to themselves judge whether or not playing of National Anthem compulsorily in all the cinema halls of the nation before each and every show of each and every movie released, amounts to “indiscriminate singing or playing of the Anthem.”
Nivedita Dwivedi is pursuing my MA in Elementary Education from Tata Institute of Social Sciences.