The Union government, on December 6, directed all state governments to enforce the Supreme Court’s order requiring all cinema halls to play the national anthem before the start of every movie, while projecting an image of the national flag on the screen. The November 30 order also makes it compulsory for all present to stand, and for the entrance and entry doors of the hall to be locked for the duration of the anthem.
The order of the two-judge bench has been widely condemned as having no constitutional backing, and for being an example of extreme judicial overreach. The Supreme Court order has defined the limits of individual freedom and prescribed a test for patriotism within the precincts of cinema halls.
National anthem in schools
In the last couple of years in states like Maharashtra where the national anthem has been played before movie screenings for years, there have been violent assaults on cinemagoers by so-called nationalists because cinemagoers chose not to, or could not, stand up when the national anthem was played. The victims of such assaults include a writer and disability campaigner. There is real concern that this bizarre new order, which would be very difficult to enforce, will further embolden the self-appointed guardians of national honour.
The Bharatiya Janata Party-led National Democratic Alliance government rode to power two-and-half-years ago on a campaign that dignified all kinds of assaults on citizens in the name of national honour. Its armies of volunteers on the streets and on social networks have wielded the terms “desh-drohi” or “anti-national” as a weapon against the government’s opponents and critics since. It would fit with this for the government to accept the Supreme Court order and push for its countrywide implementation.
Untenable orders?
Yet, in the same week that the Union government asked states to enforce the apex court order, it underlined in Parliament how singularly untenable such orders were.
In response to a question about plans to make singing the national anthem in government and government-aided schools compulsory through legislation, the government said there were no plans.
While answering the question, Minister of State for Human Resource Development, Upendra Kushwaha, referred to Section 29(2)(a) of the Right to Education Act, 2009, and Article 51-A (a) of the Constitution of India, and said:
“As education is in the concurrent list and a majority of schools are under the jurisdiction of the state governments and UT [Union Territory] administrations, it is for them to take necessary action for observance of the…provisions of RTE [Right to Education] Act and the Constitution of India.”
But neither the Right to Education Act nor the Constitution make any reference to singing the national anthem.
Section 29(2)(a) of the Right to Education Act states:
“The academic authority, while laying down the curriculum and the evaluation procedure under sub-section (1), shall take into consideration conformity with the values enshrined in the Constitution.”
Section 51-A(a) of the Constitution of India, merely states that:
“...[It is] the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.”
It does not, in any manner, direct the public performance of these duties – such as singing the anthem as part of school activities.
Government push
Although there is no requirement that the national anthem be sung in schools, it is the norm in many such institutions. Students across the country have for decades rendered the national anthem like a dirge at morning assembly or at close of day.
This has not stopped public interest litigations of the sort that led to the Supreme Court order on the national anthem in cinema halls from being filed. In the last two years, the Calcutta and Madras High Courts have heard similar pleas regarding schools. In both cases, the litigants alleged that the national anthem was not sung as a matter of routine in some schools and that it should be made mandatory. In both cases the Union government held that it had issued orders with regard to singing the national anthem in schools.
The government order to schools is a set of guidelines about the singing of the national anthem. The paragraph pertaining to schools says:
“In all schools the day’s work may begin with community singing of the Anthem. School authorities should make adequate provision in their programmes for popularising the singing of the Anthem and promoting respect for the National Flag among students [emphasis added].”
These are innocuous guidelines that do not infringe upon the autonomy of schools, and there is nothing there to make singing the anthem mandatory.
However, both the Calcutta and Madras High Courts weighed in on the issue calling for a strict enforcement of the Union government’s order.
The Madras High Court order, in March 2015, directed that as the government, schools and school boards were all agreed that singing the national anthem was a good thing, “private schools must follow such singing of the national anthem as part of their curriculum”.
This is something that even the National Curriculum Framework, 2005, which places great weight on constitutional values, does not prescribe.
In the Calcutta plea, the court noted in its September 2014 order that the petitioner had no cause to file the case. But it still ruled that,
“[T]he sincere approach of the petitioner is to see National Anthem is respected and sung as required under the orders relating to the National Anthem of India, we direct the appropriate authorities under the Central Government and also State Government to see that the educational institutions strictly follow the orders pertaining to National Anthem of India.”
In fulfilment of the Calcutta High Court order, in January 2015, the Ministry of Home Affairs wrote to all states on the matter of “Strict compliance of Orders relating to the national Anthem of India,” and followed it up with another missive dated March 3 (the Madras High Court order is dated March 5).
In the correspondence, the Union Home Ministry made no reference to the two court cases, but said that “...complaints are being received by this Ministry from various quarters about the insult or disrespect to the National Anthem of India [emphasis added]”.
The orders of both high courts, like that of the Supreme Court, are near impossible to implement. It would take monitoring school assemblies in every school. And one thing is certain, should anyone try and enforce the singing of anything in schools, school children will find a way to defeat their purpose.
Singing the anthem like a dirge is just one such way.
But what we must be wary of is the combination of a judiciary that shows little wisdom when defining the public interest, and a bureaucracy that is pathologically nervous of potential public outcry, and thus seeks refuge in obfuscation. Together they have created the space for assaults on constitutional freedoms and the straightjacketing of democratic debate. The Public Interest Litigation is a double-edged sword. And it is now being used too widely and unwisely.
