The Big Story: Judicial indiscipline
The Madras High Court on Tuesday made it mandatory for India’s national song “Vande Mataram” to be sung at educational institutions in Tamil Nadu at least once a week. It also made it compulsory for the song to be sung at least once a month in government offices and private companies.
The order was startling: the petition before the High Court that resulted in this order had nothing to do with singing “Vande Mataram”. The petitioner had moved the court against the results of a recruitment examination in which he was not awarded a mark despite correctly answering that “Vande Mataram” was originally written in Bengali.
In his judgment, though, Justice MV Muralidharan took a complete detour and began to consider the duty of the citizen to respect the national anthem and the national flag. He also included the national song on this list and claimed that it is desirable for “citizens from different walks of life” to sing it “as frequently as possible in their educational institutions/offices/ workplace/stadiums”.
By moving away from the facts of the case before it and passing a general order invoking the idea of patriotism, the High Court has stretched the powers it is bestowed with under Article 226 of the Constitution. This Article basically allows high courts to pass orders to secure the fundamental rights of the citizens guaranteed under Part III of the Constitution. While the first half of the order pertaining to the recruitment examination was indeed a matter of fundamental rights, the second part making the national song compulsory had nothing to do with the rights of the citizens.
In fact, it has nothing to do with fundamental duties either. In February, the Supreme Court made it clear that the Constitution did not mention the national song and that it would not comment on the need to make it a fundamental duty for “Vande Mataram” to be sung. As a consequence, the Madras High Court order is actually in direct contravention of the Supreme Court decision.
Worse, the high court order exempted citizens from singing the national song if there were valid reasons to do so – but failed to elaborate on what these valid reasons are, leaving it open to arbitrary enforcement. This opens up the possibility of violence against those who do not wish to sing the song. After the Supreme Court made it mandatory in November 2016 for the national anthem to be played in cinema halls, the country witnessed several incidents of people who were unable to stand up during the anthem being heckled and even assaulted by others in the audience. In the past, some Muslims have declined to sing “Vande Mataram”, stating that it was against their religious beliefs. While the police might accept this as a valid reason, mobs may not.
Forced gestures like this do not invoke the true spirit of patriotism.
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“However, constitutional experts maintain that while the two cases appear similar on the surface, the circumstances are significantly different. Former solicitor general Mohan Parasaran said the Liezietsu camp was unlikely to find favour with the Supreme Court. ‘In my view, there is no merit in the argument [of the Liezetsu faction],’ he said. ‘Anti-defection provisions will not get attracted since more than two-thirds of the party have formed the new group.’ According to India’s anti-defection law, a member is disqualified when he or she ‘voluntarily gives up his membership of a party” and “when he/she votes (or abstains from voting) contrary to the directive issued by the party’.