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SC devises a Tebbit Test around the #NationalAnthem, then goes on the backfoot

 

On November 30, the SC had directed that the national anthem be played in cinema halls across the country before the screening of a film.

A truckload of criticism appears to have forced the Supreme Court to realise its error and eat its hat. On Friday, the court ruled that despite its interim order dictating so, it won’t make the singing of the national anthem compulsory before every movie screening, and a fresh plea would have to be filed to adjudicate upon the same.

This does not exonerate the SC, because its direction to file a fresh plea is based only on technical grounds. There is no judicial reasoning whatsoever, as it was in the interim order. There is a difference between changing stances due to adverse public opinion, and laying down law in the first place (because according to Article 141 of the constitution, Supreme Court rulings form an integral part of the law of the land).

“History repeats itself, first as a tragedy then as a farce”, Marx had said. Justice Dipak Misra, now a judge of the Supreme Court, by his latest ruling of making the singing of the national anthem mandatory before every movie screening, seems to have proved how prophetically true Marx’s words were.

Fifteen years ago, when he was adorning the Bench of the Madhya Pradesh High Court, Justice Misra had ruled that not standing up while the national anthem is being sung, or showing any form of disrespect to it, were acts of ‘deviance’ and ‘anti-nationalism’.

Now, by his latest interim order to all state governments, the Centre, and movie theatres, Justice Misra has only cemented what many jurists and lawyers had said at that time- that he wouldn’t ever hesitate to enforce some sort of “acid test for nationalism”.

Of late, India and Japan have been sharing close ties, with the former pulling out all stops to woo the latter, and emulate its policies. Now it appears as if India’s Supreme Court has gone out on a limb to strengthen this fledgling bond. This is because on 30 November, a Division Bench of the top court decided to take a leaf out of its Japanese counterpart’s book and make the singing of the national anthem mandatory. As many critics of the ruling have aptly stated and observed, the court’s ruling flies in the face of both the letter and spirit of the constitution, and in fact, violates the precedent it had itself set many years ago.

The verdict of legal scholars and astute political analysts is clear- it would require a “willing suspension of disbelief” to swallow the apex court’s bulldozing of precedent and enforcing “patriotism”.

In 2012, by a 4-1 ruling, Japan’s Supreme Court dismissed the petition of 375 teachers and some students against the then Tokyo Governor Shintaro Ishihara’s 2003 diktat that everyone must stand and sing when the Kimigayo, the Japanese national anthem, is being played in public.

By laying down seven binding guidelines regarding the singing of the national anthem before every movie is screened in a theatre or auditorium, India’s Supreme Court, it would not be unfair to say, has surpassed even Japan’s top court in cracking the whip.

The court, acting on the writ petition filed by a now-78 retired engineer Shyam Narayan Chouksey 15 years ago, appears to have been obeying the government’s November order from last year that the National Anthem must be sung at all school assemblies, and everyone present must stand in rapt attention during those 52 seconds till which the anthem lasts. It is a different matter that the government withdrew its directive after there was a furore, and has not enforced it since.

There are glaring faultlines- both legal and moral, in the Supreme Court’s ruling.

First and foremost, the court (it’s important to remember that a judge doesn’t act as an individual, but as a part, and representative of, an institution- in this case, the judiciary- as a whole) relies upon the legally-unenforceable Article 51A of the Constitution to issue a legal imprimatur. 51A, enacted when the Emergency was in force, contains a list of Fundamental Duties, one of which is to ‘respect national values’. But the constitution itself prohibits any court from giving any binding directive based on the provisions of 51A.

Second, the court’s ruling is eerily reminiscent of the US Supreme Court’s 1940 judgement in Minersvillle School District v Gobitis, where it was held that students belonging to the Jehovah’s Witness sect of Christianity were to be penalised for not singing the national anthem or taking the pledge of allegiance. Justice Felix Frankfurter, writing for the bench, ruled that, “We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security.”. That ruling was handed down at a time when Nazi Legions were marauding towards Paris, and the world was caught in the throes of war.

Is our Supreme Court imagining that India is at war? It is only stoking flames of the acrimonious rage of “anti-nationalism” which threatens to engulf anyone who dares to voice dissent against majoritarianism and everything it brings in its wake.

Third, in 1986, the Supreme Court, in the Bijoe Emmanuel (Jehovah’s Witness) case, ruled that the Minersville judgement would not be applicable in India. The court ruled that students belonging to the sect cannot be penalised for not singing the national anthem.

The Supreme Court’s ruling eerily borders on the now notorious “Tebbit Test”- the one devised by British MP Norman Tebbit, who asserted that those who did not support England in cricket matches were all potential quislings and traitors.

The Court’s sudden backtracking shows that sometimes an upsurge of public criticism and backlash does manage to shake up some judicial pillars. One wishes that the court follows the same course instead of threatening journalists and dissenters with criminal contempt.

http://www.dnaindia.com/india/column-supreme-court-national-anthem-2279102

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