Wednesday, November 30, 2016

Supreme Court order on national anthem uses patriotism to undermine individual rights // Has the deification of the nation become the nationalisation of God?

"The disinterestedly wise ought to desire the holding together of all being" (Bhagwadgita, III 25)

"...When the national anthem is played it is imperative for everyone to show honour and respect. It would instil a sense of committed patriotism and nationalism…Time has come for people to realise that the national anthem is a symbol of constitutional patriotism… people must feel they live in a nation and this wallowing individually perceived notion of freedom must go…people must feel this is my country, my motherland. [emphasis added] ...

"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. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible" - From the SC order on the national anthem dated Nov 30, 2016

NB: We Indian citizens are hereby informed that notions of 'individually perceived' rights of the individual have no space and the very idea is tantamount to 'wallowing', and is 'impermissible'. (How else can the rights of an individual be perceived otherwise than by an individual?). Moreover we are told what we must feel; that our obligation to abide by constitutional ideals is 'sacred'. Whatever the expectations the learned Judge who passed this order holds of us, there are also expectations that we citizens hold of our judges. Primary amongst these is that they remain restrained in their speech; and are seen to be aware of the philosophical ramifications of judicial utterances. Many citizens including the highest political leaders may not be so aware and often speak in haste. But when it comes to judges, we expect that they will be cautious and restrained: the exercise of wisdom is the fundamental requirement of judges, even though this is a quality that may only be perceived, not measured. 

'Sacred' is a word that adheres to religion. Are we required by law to a) be religious, and b) shift allegiance from Almighty God to the Nation? Should not the wise amongst us educate citizens as to the complex and indefinable aspect of nationalism, which seems to have emerged as the modern form of prayer? Would the learned judge deem Rabindranath Tagore, the very man who composed the national anthem, to be a nationalist? Here's what Tagore said of nationalism: With the growth of nationalism, man has become the greatest menace to man. Therefore the continual presence of panic goads that very nationalism into ever-increasing menace. Here is Tagore's 4-part essay on Nationalism (1917). Among the many scholarly debates about nationalism, aside from the aforesaid remarks by Tagore, is the one initiated by B R Ambedkar in his Thoughts on Pakistan (1940, 1945. See in particular, Chapter 2). 

Be that as it may, there are some who hold (and I am among them) that the nation-state has become a god-substitute for a godless age. Insofar as the Eternal Creator could scarcely be imagined to seek a dwelling place in a sliver of ground on an insignificant planet, nationalism is a dishonest form of atheism. Religious persons worship God, not nations. The deification of the Nation has turned into the nationalisation of God, and we cannot be forced into a blind acceptance of this substitution. This is not about affinity - love for one's culture or home is natural (although not inevitable). Love for the nation, howsoever defined, ought not to be, and cannot be transformed by diktat into enforced affinity. You cannot dictate my feelings, for the simple reason that love and friendship must be spontaneous to be real. If you order me to feel some emotion under pain of punishment, how can you be sure that my expressions are genuine? As Gandhi said in Hind Swaraj (p 60), 'what is granted under fear can be retained only as long as the fear lasts'

Constitutional patriotism requires the citizen to be law-abiding and faithful to the norms of the constitution. It does not oblige us to accept unjust laws - were this the case, there would have been no national movement in India. The constitution protects religious freedom, but it does not require us to be religious in any way - I am free to be an atheist or agnostic. Nor can it be reduced to such shallow forms of adherence as standing to attention. Sometimes it is not the criticism of specific judgements but the speech of the Bench that undermines the status of the Court. I am sorry to say this judgement is evocative not of wisdom but thoughtlessness. So help me God. DS

The Supreme Court on Wednesday decided to give India a lesson in how exactly it should respect the national anthem. In an order that many experts have deemed a massive gesture of judicial overreach, the court yet again ventured into lawmaking by asking cinema halls to play the national anthem before start of each show along with displaying the national flag on the screen.

This decree to cinema halls was accompanied by other sweeping comments that limit freedom of expression by placing the anthem even beyond artistic interpretation. The Supreme Court, which is supposed to be the ultimate guardian of the fundamental rights of citizens, devalued the notion of individual rights by claiming that it had no place in the context of respecting national symbols.
“Be it stated, a time has come, the citizens of the country must realise 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 bench said. “It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible.”

By laying the rules on how to respect the national symbols, the court has put in place a law that was not envisaged by Parliament. The order has also reversed the cautious, liberal view the Supreme Court has taken in the past when dealing with cases under the Prevention of Insults to the National Honour Act. In 1986, the court took the side of three school children from Kerala who had refused to sing the national anthem during the school assembly every morning. Unlike the current interim order that placed collective responsibility over individual rights, the court decided in 1986 that forcing the children, who were faithful Jehovah’s witnesses, to sing the anthem was an infringement into their freedom of religion.

In developed western democracies, reverence to national symbols is not imposed at the cost of dissent. In 1989, the Supreme Court of the United States went to the extent of allowing the desecration of the national flag, arguing that such an act was very much part of freedom of expression guaranteed under the Constitution. There are also logistical problems that crop up with the order. How will the state implement it? Will policemen stand guard inside cinema halls and book those who do not show respect to the anthem in the manner decreed by the court? In October, the nation witnessed in disgust the assault on a differently-abled man in Goa who was physically incapable of standing up for the anthem. With this order, the Supreme Court may have inadvertently emboldened elements prone to taking the law into their own hands in the name of patriotism.
http://scroll.in/article/822984/the-daily-fix-supreme-court-order-on-national-anthem-uses-patriotism-to-undermine-individual-rights

Suhas Palshikar: Citizens into subjects
SC’s mandating of nationalism and patriotism threatens to turn the wheel of constitutional history backwards. The enterprise of teaching and instilling patriotism is fast picking up. India has fought wars before and both during those wars and in peace time, the citizens of this country have never shown any trace of disloyalty or disaffection toward this country. But suddenly, we seem to be collectively succumbing to this phobia about a shortage of nationalism and patriotism among the public. And so, pills and injections containing vitamins N and P are being forced on to the unsuspecting citizenry...

At first glance, Wednesday’s Supreme Court ruling making it mandatory for cinema halls across the country to play the national anthem before screening movies, and requiring cinema-goers to stand up while it is being played, can be seen as yet another decision that appears more whimsical than grounded in Constitutional principle. Instead of refusing to waste its precious time hearing unimportant petitions from self-righteous busybodies who seek to impose their norms on the whole country, the Supreme Court has entertained many such, and created incentives for people to waste the court’s time and the citizens’ peace. But a comment made by the bench – perhaps revealing the rationale for the decision – should make us sit up and take notice:

When the national anthem is played it is imperative for everyone to show honour and respect. It would instill a sense of committed patriotism and nationalism…Time has come for people to realise that the national anthem is a symbol of constitutional patriotism…people must feel they live in a nation and this wallowing individually perceived notion of freedom must go…people must feel this is my country, my motherland. [emphasis added]  

The Supreme Court just dissed individual liberty.

The bench sneered at one of the pillars of the Indian Constitution. Troubling as it is, more than the ruling itself we should be concerned that India’s highest judges think this way, and think nothing of expressing it this way. The Supreme Court is, after all, the ultimate guardian of individual liberty. It gets this responsibility from no less an authority than the Constitution of India. Citizens will be justified in wondering if the Supreme Court can discharge this assigned responsibility if it harbours such cynicism or disdain for individual liberty.

Legal scholars will no doubt cite scores of High Court and Supreme Court judgements that are unambiguous on the matter. Except when “individual liberty comes into conflict with an interest of the security of the State or public order”, individual liberty is supreme. It would be stretch to argue that people not standing up for the national anthem presents a scintilla of risk to the national interest. Indeed, India’s security or social order has suffered little damage from people not standing up for the national anthem in cinemas from January 26, 1950, till date. The judge’s words do not have a force of law, but to the extent they reveal thought processes, we have to worry. It is bad enough for the Supreme Court to scorn individual freedom. To do so on an issue as unserious and arbitrary as what should be done at cinema halls is terrible.

Tailpiece: 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. 
[K M Munshi, Constituent Assembly, December 6, 1948]