By Jai Venaik
The oxford dictionary recently announced the word of the year to be post-truth. A term first coined in 1992 by late Serbian-American playwright Steve Tesich; post-truth identifies a political culture largely based on appeal by emotions and sentiment while tugging policy, rationality and reason to the back seat.
The year is 1943; a congregation fuelled by Adolf Hitler is tackling the onset of the war built on the evils of nationalism gone astray. A year before, Netaji Subhash Chandra Bose attended a musical concert by Eigel Kruettge which also happens to be the first musical presentation of the beloved, Jan Gan Man.
[su_pullquote align=”right”]America imposes an order to respect national symbols, in a morale boost to encourage Americans to be Americans.[/su_pullquote]
But in the then liberal America, the Supreme Court redefined the tenets of nationalism. America imposes an order to respect national symbols, in a morale boost to encourage Americans to be Americans. The case being heard in question was West Virginia State Board of Education v. Barnette where Justice Robert H. Jackson delivered his plea and reason in defence of individual liberty placing them beyond the reach of majorities and officials. In January of 1942, the West Virginia Board of Education passed a resolution that made a daily flag salute a requirement in all public schools for both teachers and students. Refusal to participate in the flag salute by teachers was grounds for dismissal and readmission was to be denied until compliance was achieved. For students, the punishment was expulsion from school that would be considered an unlawful absence and force the childs parents or guardians to be liable for prosecution on charges of delinquency.
The Barenette sisters refused to comply with the rules. Jackson wrote the majority opinion for the Court, which was split 63. Jackson held that making it compulsory to salute the flag and pledge allegiance was a violation of the First and Fourteenth Amendments and was not able to be justified as a means of achieving patriotism and national unity. Jackson reasoned that saying the pledge of allegiance was speech as it communicated an expression of set ideas. By making this speech a requirement it violated the First Amendment values.
The Supreme Court of India heard a writ petition resulting in charting out a seven point description of how Indians are supposed to respect their national symbols. This is not the first instance where the judiciary has commented on national anthem or symbols.
Bijoe Emmanuel & Ors vs State Of Kerala & Ors on 11 August, 1986 is considered to be a historical achievement in upholding the rights of a free citizen in India. Much like the West Virginia Case, the Emmanuel sisters refused to sing the national anthem citing religious reasons as they belong to the Jehovah Witness sect. Jutice Reddy gave a reasonable explanation to what national symbols and respect means. He stated, The real test of a true democracy is the ability of even an insignificant minority to find its identity under the countrys Constitution. Justice Reddy added: Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 [of the Constitution]. Going down as a case law in study, Justice Reddys famous rhetoric upheld the true test of democracy.
[su_quote cite=”Justice O. Chinnappa Reddy”]Our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practises tolerance; let us not dilute it.[/su_quote]
With modern times we have debated on the new and changing face of our national identity. In 2005, Sanjeev Bhatnagar vs Union Of India & Ors carried forward a debate on the possible new additions and modifications to our national anthem. The petitioner advocated rectifying the national anthem to include, Sindh in the national anthem. The petition was dismissed by the court but it was widely inferred that our national symbol and identity is our asset.
In the 2004 Naveen Jindal judgment, a three-judge Supreme Court Bench led by then Chief Justice of India V.N. Khare upheld the citizens fundamental right to fly the national flag freely with respect and dignity. The short appeal distinctly put out a fundamental question in front of the bench, Are Indians allowed flying their own national flag over their houses/ establishments? The outcome was simple and dignified Indians won.
The Supreme Court has taken up the challenge to make the countrymen ‘respect’ the national symbols. | Source: YoutubeBut never have we indulged in defining the correct code of respect. However, the Supreme Court has taken up the challenge to do so. So lets take a look at the seven points the court detailed.
The first point deals with the commercial exploitation to give financial advantage or any kind of benefit. The idea is noble but in an ever increasing globalised world, being Indian is an advantage. Indians have the right to use their everlasting history and pride to benefit and make a lead in the world market. Not only that, the national anthem itself is a prayer for a better future tomorrow. Why does the court then think that Indians are not capable of using their own national pride?
The next points prohibit the dramatization of the anthem. The 2002 Karan Johar movie, Kabhie Khushi Kabhi Gham did cause a stir in this regard. Mr. Chouskey, retired government official, filed a PIL in the Jabalpur high court which was heard by Justice Dipak Misra who obligingly banned the entire movie in 2003.
[su_quote cite=”J. Dipak Mishra in the judgement”]National Anthem is to be sung with magna cum laude and nobody can ostracize the concept of summa cum laude. [ ] The national anthem is pivotal and centri-podal to the basic conception of sovereignty and integrity of India. It is the marrow of nationalism, hypostasis of patriotism, nucleus of national heritage, substratum of culture and epitome of national honour.[/su_quote]
He further added in context of the case, The producer and the director have allowed the National Anthem of Bharat, the alpha and omega of the country to the backseat. On a first flush it may look like a magnum opus of patriotism but on a deeper probe and greater scrutiny, it is a simulacrum having the semblance but sans real substance. There cannot be like Caesars thrasonical brags of veni, vidi, vici. The boy cannot be allowed to make his innocence a parents rodomontade, at the cost of national honour. In our view, it is contrary to national ethos and an anathema to the sanguinity of the national feeling. It is an exposition of ad libitum. This verbose judicial piece of writing was eventually turned by the Supreme Court in 2004.
The much talked about relationship between Cinema Halls and the National Anthem is covered in the fourth point. My first question was Why cinema halls? As a student of history and politics, my obvious answer would be that the Supreme Court is cautious as it knows the effect cinema has on people. Lenny Riefenstahl movies are much to be blamed for altering the psyche of Germans during the Nazi regime but cinema halls have nothing to do with corrupting people. Funnily enough, the Supreme Court rejected a plea making the national anthem mandatory in courts on technical grounds.
Details on how cinema halls are supposed to play the anthem are detailed in the subsequent points. Leaving nationalism aside this could lead to a grave security issue. The Uphaar Cinema Fire in 1997 killed 59 people because the gates of the cinema hall were shut. More than the nation, its a question of the security of its people as well.
One of the important questions to ask at this juncture is, Does the national anthem belong to someone? Or as guardians of the constitution, it belongs to the Supreme Court?
Skimming through the Constituent Assembly debates for more reason and rationale, I came across a quote by KM Munshi which aptly describes the situation today:
Our emergency at the moment has perhaps led us to forget that if we do not give that scope to individual liberty, and give it the protection of the courts, we will create a tradition which will ultimately destroy even whatever little of personal liberty which exists in this country.