Tuesday, December 13, 2016

KANAD BAGCHI - The Supreme Court Is Perpetuating the Myth of Constitutional Patriotism // Rituparna Chatterjee - How A Movie Turned Into A Nightmare For 8 Chennai Residents Who Refused To Stand Up

NB: It is time to ask the hon'ble judges of the Supreme Court if they are aware of the danger that this order poses to public order. Is vigilante justice and violence in the name of patriotism permissible, in their view? Will the assailants be as liable to police action as those who do not stand up? Will I be protected from vigilante violence by the police, or will the police and judiciary approve of such acts? 

Why are movie halls the only venue where patriotism must be displayed? Why shouldn't the national anthem be played in courts, starting with the Supreme Court? In every session of parliament; and in all police stations, every morning? In all malls and restaurants? Airports and railway stations? Why only the movies, your lordships? Why? DS

Has the deification of the nation become the nationalisation of God?

KANAD BAGCHI - The Supreme Court Is Perpetuating the Myth of Constitutional Patriotism
The court’s appeal to constitutional patriotism in its order on the national anthem demonstrates a forsaking of intellectual enquiry into political theory and law, and a perilous road to judicial hegemony. This was perhaps not the first time that the battleground for nationalism and patriotism was redefined when the ‘national anthem’ sought a hearing from the Supreme Court. In one stroke, the debate was moved from the realm of politics to the realm of highest judicial dictate, leaving no further ground for differing minds or competing conceptions.

That the legitimacy of the Supreme Court remains fallible, not least because of increasing individuality of specific judges on the bench, has been deplored, and perhaps rightly so. While the meaning of the law ought best to distance itself from sentiments and moral indignation, it would be wrong to suggest that a purely positivist conception of the law is per sedesirable. Pure positivism, devoid of political philosophy and a socio-economic construct, will remain myopic, distant and feckless. 

As the court displays a near judicial bankruptcy of reasoning, it is extremely difficult to position one’s response to the court’s invocation of “national identity, national integrity and Constitutional Patriotism” as either an exposition of pure sentiment or political philosophy. Arguably it is both and has inflicted yet another blow to the court’s standing and authority. Moreover, the court’s appeal to constitutional patriotism in the order demonstrates a complete forsaking of intellectual enquiry into political theory and law and, what is worse, a perilous road to judicial hegemony.

The history of constitutional patriotism
In two brief paragraphs, the court seeks to encapsulate almost seven decades of political thought on ‘constitutional patriotism’ and ‘national identity’, bereft of its context, variations and underpinnings. The court’s recalcitrant approach in tossing around concepts of profound significance without the slightest enquiry into its meaning or relevance is displayed, most pitiably, in its understanding of constitutional patriotism as being opposed to individual rights. Indeed, philosophical enquiry does not conceive of a single or monolithic connotation of the term ‘constitutional patriotism’ and it has, through several thinkers, assumed varying dimensions. However, even in its most fundamental conception, it stands as an affirmation of liberal constitutional principles.

As a political theory, the roots of constitutional patriotism go back to philosopher Karl Jaspers, who in a series of lectures in 1946 explained the question of “German guilt” as a result of the acts of the Nazi regime during the Second World War. Indeed, post World War II, several philosophers were increasingly concerned with social unity, identity and the lasting stability of the German state. He advocated for an open dialogue between citizens, for a collective and lasting memory of the monstrosity of the war, and to engage in an argumentative recollection of the ills of their government. 

Jaspers was clear: the way to solidarity for the German people, dismayed by an apologetic past and a fragmented society, was in a conscious and collective reflection on their past, rather than in its repudiation. In this regard, the constitution came to be the focal point of cohesion for the German people and the German constitutional court its uncontested harbinger.

However, it was not until late 1970s that one of Jaspers’s students, Dolf Sternberger, a philosopher in his own right, coined the term ‘constitutional patriotism’ to denote an affinity towards the laws and the constitution, and especially its democratic and libertarian connotations. His call was for an unflinching approbation of the Basic Law (the German constitution) and for the German people to identify with its core values. The darker side to his philosophy was, however, a more aggressive form of defending the democratic polity from authoritarianism: what has been later described by philosophers as “militant democracy”. Needless to say that the context of the war, the failure of democratic institutions and the overpowering of the old Weimar constitution was central to Sternberger’s idea of militancy, as a means of protecting and preserving democracy… read more:

How A Movie Turned Into A Nightmare For 8 Chennai Residents Who Refused To Stand Up
On Sunday, a group of eight persons, including three women, were inside Chennai's Kasi theatre for a screening of the film 'Chennai 28-II', a coming-of-age sports comedy. What was slated to be regular movie watching experience, turned into a nightmare for these eight after a mob of 20 people attacked them for not standing up when the national anthem played before the film was to begin.  Among the group was a social worker, a freelance writer and a college lecturer who took the decision to defy, on grounds of principles, a Supreme Court order of 30 November that made it mandatory for cinema halls across India to play the national anthem before a film's screening.

"Almost an hour later, as the movie was about to resume after the interval, a man grabbed Viji (a freelance writer) by his shirt and sought an explanation for not standing up. He kept threatening he would kill us. Some 20 people seated near him joined him. We asked him to call the police if he had a problem with what we had done. But he grabbed my hand and pushed me. Nobody in the hall came to our support," social worker Sreela M told the Indian Express.  The horrifying incident of reckless crowd vigilantism happened during the intermission. Sreela said their decision stemmed mainly out of their belief that "this (being made to stand up during the national anthem) was not the way to show patriotism."

"During the interval, one Vijayakumar caught my T-shirt and hit me from behind. He along with twenty others questioned why we did not stand for the anthem. He was threatening to kill us for not standing up for national anthem," S Viji, 26, a freelancing film reviewer told the New Indian Express. This report claimed that the eight also filed a counter complaint against those in the mob at the MGR Nagar police station.  Express reported that the eight victims of assault were booked by the police under the Prevention of Insults to National Honour Act, 1971.  A security guard asked both the victims and the perpetrators to leave the hall, but the eight were afraid that the mob was waiting outside and requested to be allowed to stay in the relative safety of the theatre till the end of the movie.  The 20 people who assaulted the eight soon started to abuse the women, an official told the paper. Sreela said a police officer at the MGR Nagar police station gave them a lecture on patriotism.