On December 11, 2013, Justices GS Singhvi and SJ Mukhopadhyay of the Supreme Court overturned a 2009 Delhi High Court verdict on Section 377 of the Indian Penal Code. The section criminalises any form of so-called “unnatural” sex. The High Court judgment had made it impossible for Section 377 to be used to target consensual homosexual acts. But the Supreme Court verdict allowed homosexuals in India to be targeted once again by police and law-enforcement agencies for having consensual sex.

The apex court based its judgment on several factors, prime among which were the following two. First, it said there was no need for Section 377 to be overturned since it targeted only a minority population. The bench held that there was, at most, a “minuscule fraction” of homosexuals in India. And such a minority did not merit the attention of the court.

Second, the Supreme Court judgment said that were such a law to be overturned, then that act would have to be performed by the country’s legislature, not the judiciary. Parliament would have to take up the matter of rewriting the law. At the time, several legal eminences were of the opinion that this judgment constituted a classic case of passing the buck. Because the Supreme Court did not want to alleviate the plight of a minority that it might also have considered to be morally reprehensible (“we do not know any homosexuals,” the judges said while hearing the arguments), it decided to pass on the responsibility to a Parliament that was soon to be populated by a Hindutva-leaning majority.

It is worth remembering that in 2009, the United Progressive Alliance-led Union government, had neither challenged the Delhi High Court ruling that read down Section 377, nor had it filed an appeal along with the others that were heard by the Supreme Court in 2012. At that time, the Union government seemed keen, it would be fair to surmise, that the apex court uphold the Delhi High Court’s judgment on Section 377, and declare it illegal to target people for private consensual sex acts.

In 2013, the Supreme Court ceded the right to change laws to Parliament. But such a ceding seems to happen only in relation to certain laws. With others, there is a greater urgency to spread change.

Exceeding judicial mandate?

For instance, on February 14, Attorney General Mukul Rohatgi asked a Supreme Court bench led by Justice Dipak Misra to make even more expansive the impact of an order that Justice Misra and Justice Amitava Roy had passed in November that directed all movie theatres in India to play the national anthem prior to the screening of any film. Equally, the order ruled that all people at the movie theatre will need to stand when the anthem is played. There were also a variety of directives attached to this order, stating the exact provisions to be made by theatre owners during the screening of the national anthem.

Justice Misra observed on February 14 that he did not want his order to be the cause of even more moral policing. This comment was in response to several reported cases of vigilante violence in cinema halls against people who did not stand up when the anthem was played. Nonetheless, the government-appointed attorney general pressed for more action. Rohatgi said that the 1986 Supreme Court order allowing three children belonging to Jehovah’s Witnesses – a Christian-based religious movement – not to sing the national anthem should be revisited. He also wanted the court to make it mandatory for the national anthem to be sung in schools since “it is extremely important to instil a sense of nationalism from childhood”.

In pressing for these orders, Rohatgi expects the Supreme Court to rewrite the law of the land, and renege on the Constitution’s commitment to both minorities and freedom of expression. As several people have pointed out, the Constitution of India does not mandate that anyone stand for, or sing, the national anthem.

The Prevention of Insults to National Honour Act, 1971, which was amended in 2003 and 2005, states only and clearly in Section 3, under the title, Prevention of Singing of National Anthem, that:

“Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or fine, or with both.”

The Constitution of India says that no one should be prevented from singing the national anthem should they choose to. There is nothing at all in that document to mandate that people should stand.

Thus, we need to be clear about this: the Supreme Court’s order of 2016 rewrote what the Constitution has to say on the matter of respecting the national anthem.

Article 51A of the Constitution of India (1949) says:

“It shall be 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.”

Part E on the same list of fundamental duties enjoins us:

“to promote harmony and the spirit of common brotherhood [sic] amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women”,

And Section F asks us “to value and preserve the rich heritage of our composite culture.”

The order that the national anthem be played in all movie theatres and that all people stand for it is an exercise in sentimentalised fetishism. It makes people focus their energies around what is seen as a “good” that acquires the value of the good-above-all-others. So even as open defecation continues in India, even as women continue to be raped, even as communal fears are at an all-time high, not standing for the national anthem becomes the crime that the government is keen on prosecuting.

Age of hetero-nationalism

This valorisation of the one thing that counts as patriotic allows us to ignore all the other violations of our rights and duties that are perpetrated on a daily basis. It allows us to forget that we have a rich heritage and composite culture that does not mandate a uniform code of behaviour for all. It also encourages us to forget that there are many ways in which one can be patriotic. Most of them do not involve standing for the national anthem in a movie theatre.

What is also noteworthy is the relation between the 2016 judgment on the national anthem and the 2013 verdict on Section 377. In 2013, the Supreme Court said that it cannot rewrite the law, only Parliament can. In 2016, the apex court has not only rewritten the Prevention of Insults to National Honour Act of 1971 but has also, in effect, tried to amend the Constitution, all on its own.

In 2013, the Supreme Court judgment stepped away from its duty of protecting minorities. In 2016, the Supreme Court directive has moved towards the government’s goal of promoting majoritarianism. In 2013, homosexuals were once again opened up to vigilante policing and blackmail. In 2016, the reach of moral policing and vigilanteism has been extended even further. Over the last three years, India seems to have entered into a phase that might best be termed, for its valorisation of moral codes of sexuality and patriotism, hetero-nationalism.

Madhavi Menon is a professor of English who patriotically returned to her country after living in the United States for 18 years. All views are personal and political.