“Fake it until you make it”
National symbols are not mere indirect representatives of a nation’s citizens, of ideas or of feelings but have a greater profound meaning with a broader spectrum of a nation’s values and traditions depicting history that ultimately unified the nation. Being akin to a nation’s history, they are an expression of respect and high consideration, such that, they find mention in the Constitution, benefitting them from legal protection. But one must always remember that these symbols are “broader than an ideological movement” and that ‘to have an impact in history it is not sufficient that a colour or an emblem be chosen only once, it still needs to be adopted by the people, perceived, received, in short, that it succeed’ .
Before moving any further, we must keep in mind three things: first, Patriotism is an emotion or a sentiment of love for one’s own country and such love cannot be won with force but has to be earned; second, Article 19 of the Constitution of India provides for “Freedom of Speech and Expression” and if we consider the meaning of expression it can be said to be content and form both; where content is the meaning being conveyed and form is the way in which meaning is being conveyed; third, fundamental duties provided in Part IV of the Indian Constitution do not have any legal consequence or legal sanction in case of its non- compliance. Thus, with no prescribed standard for pledging allegiance to our national symbols, the portrayal of such respect towards nation by any means would be sufficient, and not necessarily the kind homage imposed by the Government, nor can there be any legal coercion to comply.
Back in school, when the initiatives begin to make each one of us a responsible and law abiding citizen, we all are instructed to learn and sing the National Anthem and salute to the Indian National Flag in the fullest of our spirits. We stood there like golems with no clue that we were not only instructed to maintain decorum but to instill patriotism in our hearts for our Mother India. Once we move out of school, the true essence of paying respect to the National Symbols is understood but the absence of occasions to showcase our patriotism does not, in the remotest of the possibilities, indicate that we no longer possess it. Often, doubt in regards to the validity of ‘proving love for the country through ritual idolatry’ is questioned.
The main objective of the paper is to point out the wreckage created by norms other than Legislature made laws. The paper will be analysing the issue of imposing “pseudo-patriotism” under the veil of constitutional patriotism, and for this the authors will be assessing, firstly, the controversy regarding the National Anthem and then regarding the National Flag of India.
- National Anthem Controversies
National Anthem can be defined as a psychological dynamo which consistently has achieved its goal of binding the country as a whole to rise to their feet. It is generally a poetry or a song for the glorification of the country, which technically a hymn. Often it is seen that the countries which were formerly under the British rule and succeeded to get independence have adopted National Anthems in order to glorify their freedom struggle. In short we can say that National Anthems symbolize unity and integrity and are songs which are celebratory in nature.
The National Anthem of our country, India, is “Jana Gana Mana” which was the composition of the great poet, and the first ever Asian to receive a Nobel Prize, Rabindranath Tagore. It was adopted by the Constituent Assembly of India on 24th January, 1950. The anthem has always acted as a catalyst to arouse a filial affection for the country, produce social cohesion among the citizens and transcend and redefine individual identity by giving people a sense of higher purpose.
Since the time “Jana Gana Mana” was selected as the National Anthem over Vande Matram, till the present time when it has been made mandatory to play it in the cinema halls before the movie, it has always been in the controversy. Over the years it has become like the sacred totem, almost being worshipped. The main aim of the paper is to analyze the two recent orders of the Supreme Court regarding mandatory playing of the National Anthem before the movie starts in the cinema halls and during this the viewers has to stand compulsorily in order to show respect. In the past also there have been various precedents in this context and it is important to analyze them in order to analyze the current orders.
In the National Anthem controversy, the first landmark judgment was given by the Supreme Court in the case of Bijoe Emmanuel v. State of Kerala. In this, the Court balanced the fundamental duty Article 51A with fundamental right of freedom of speech and expression and of freedom of religion. In this case, three children were members of the religious group, Jehovah’s Witnesses, denied to sing the National Anthem. As a consequence, they were labeled as “unpatriotic” by certain pressure groups, and hence, the principal of the school expelled the children. The Supreme Court held the expulsion to be unconstitutional. Balancing duties with rights, it held that although Article 51A of the constitution enjoins a duty on every citizen of India “to abide by the constitution and respect its ideals and institutions, the national flag and the National Anthem”, it will not be right to say that disrespect is shown by not joining in the singing in the National Anthem. Thus, the court stated that the right to freedom of speech and expression included the right to remain silent. Furthermore, the right to remain silent and the right of no active respect were distinguished by the court from the duty against disrespect.
In the case of Ranganath Mishra v. Union of India, Justice Ranganath Misra requested the Supreme Court to issue necessary directions for adopting various modes and manner for generating awareness and consciousness of citizens towards fundamental duties under Article 51-A. He challenged the correctness of the decision in Bijoe Emmanuel v. State of Kerala, and his request the Court referred the matter to the constitutional bench, but later it was returned to a 3-judge bench. In this case, the Apex Court directed the Central Government to consider the recommendation made in the report by the Justice Verma Committee and take appropriate steps for the implementation expeditiously. It is important to note the even in the report it is stated that “right to freedom of religion and other freedom must be jealously guarded and rights of the minorities and fellow citizens respected.” Therefore, we can see that in the past, we can see that the Judiciary has always put fundamental rights over fundamental duties.
In 2002, Shyam Narayan Chouksey moved a petition in the Madhya Pradesh High Court accusing producer-director Karan Johar of insulting the National Anthem in his movie ‘Kabhi Khushi Kabhi Gham’. Chouksey complained that a scene in the movie depicted the National Anthem in poor light. Further, he pointed that there was no reaction in the audience seeing the picture when the National song was sung, but only few including the petitioner responded by standing up to pay respect. The other viewers remained seated, blissfully ignorant and unaware of their duty. The petitioner’s standing up was objected to by the people who were sitting behind him and in fact, they complained of obstruction.  In the writ petition, reference has been made to Art. 51-A of the Constitution and to the provisions enshrined under the Prevention of Insults to National Honour Act, 1971. Justice Dipak Misra observed: “Corrosive attitude in regard to honour of the national sentiment is totally impermissible. The dramatization of the National Anthem is against the constitutional philosophy”. Also it was ordered that the movie shall be withdrawn from all theatres and could not be shown unless the producer removed the scene depicting the National Anthem in what the judgment said was “contrary to national ethos and an anathema to the sanguinity of the national feeling”.
The above judgment was challenged by Karan Johar in the Supreme Court, in case of Karan Johar v. Union of India. The Supreme Court struck down the MP High Court judgment in the Chouksey case and observed: “We are satisfied that in view of the instructions issued by the Government of India that the National Anthem which is exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is not expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the National Anthem.”
Again, in 2016, the Supreme Court pronounced a jaw-dropping order making it mandatory for the cinema halls to play the National Anthem and the citizen were bound to stand in respect of the anthem. The judgment was authored by none other than the then Chief Justice of India, Justaice Dipak Misra, along with Justice Amitava Roy. Seven guidelines were given by the Court in this respect. One of them was: “(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.” The order created a turmoil among the citizen and was criticized vehemently by them for being in contradiction with the fundamental rights under Article 19 and 21.
After this order, there have been several incidents in which the movie goers were forced to stand up for the National Anthem and if not then an arrest by the police. Similar incident happened in Hyderabad where three engineering students were booked for disrespecting the National Anthem by not standing when it was being played. Also, a wheelchair-bound disability rights activist was allegedly heckled and called a Pakistani at a theatre in Guwahati after he couldn’t stand when the National Anthem was played.
Later, in October, 2017, the Supreme Court of India passed an another order in the same writ petition, where it observed the difficulty in implementation of the previous order and finally put the onus on the Centre to redefine and modify the laws regulating the playing of the National Anthem in the cinema halls. The Court also added that the Centre does not need to be influenced by the earlier order. But if we see the final effect of the order the result is cipher and playing of National Anthem remains mandatory till the Government legislate any law in the reference.
Apart from these orders, in some states like Maharashtra, Karnataka, Chattisgarh, etc. this practice of playing the National Anthem in the cinema halls before the movie starts was there already even before the order of the Court.
The orders are clear violation of the fundamental right of freedom of speech and expression and were criticized because, firstly, the singling out of the cinema halls is arbitrary as an imposition of a duty to sing the National Anthem in a space meant for entertainment lacks justifiable basis. It was held that people who are not standing for the National Anthem may be booked for disrespect or insult of the National Anthem. But this seems very vague and is not in consonance with any law of order given by the Government. If we analyze Section 3 of The Prevention of Insults to National Honour Act, 1971, which states that “whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in such singing shall be punished for a term which may extend to three years or with fine or both“, we will observe that there is support given by this Section to the order of the Court because the legislation is silent on if ‘people do not stand’. Further, the only other provisions dealing with the National Anthem are the Orders Relating to the National Anthem issued by the Home Ministry, also states: “Whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a newsreel or documentary the Anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the Anthem.” Therefore, it is very evident that the intention of the legislation is to prevent the insult or dishonor of the National Anthem and not impose obligations on the citizens in garb of orders with the motive to instill the feeling of constitutional patriotism and nationalism by force or compulsion.
Secondly, this mandatory enforcement of patriotic values is indicative of a worrying trend towards aggressive nationalism in the Supreme Court. As we can see that the Supreme Court in its previous order has justified the mandate that is was done with the motive to accelerate the culture of “constitutional patriotism”, but it lacks its understanding and rather than furthering this idea, the Court contradicts the basic idea of adherence to constitutional principles and discursive consensus that are crucial to hold any democracy together. It forgot that the constitution framers never intended to stake the fundamental rights for the sake of enforcing the fundamental duties, thereby, going against the spirit of the Constitution for promoting the constitutional patriotism or better called as pseudo-patriotism. They forgot that the amount of respect for the nation that a citizen beholds when he is given all the freedoms and right, will be way great and genuine that the sham respect which is gained under compulsion and mandatory orders because as respect is something which is earned and not demanded. Moreover, Justice Chandrachud in his criticism has correctly pointed out that values are inculcated and not mandated.
Therefore, we can say the National Anthem is an integral part of our national identity and our Legislature has already framed well structured rules to prevent any dishonor or insult to it. It was a sheer waste of time of the Supreme Court in guaranteeing that someone’s profound patriotism is not offended by the acts of others who are just at the cinema hall for undiluted entertainment. Moreover the fundamental rights guaranteed under the Constitution of India hold more importance than the pseudo-patriotism they are mandated to show.
National Flag Controversies
“A flag is a necessity for all nations. Millions have died for it. It is no doubt a kind of idolatry which would be a sin to destroy.”
The national flag, in any country, like the other sovereign emblems, must be protected from insult and damage for the history, traditions, national pride and identity. Flag is not an object but a relationship. Indian National Flag emerged as a symbol of then in-process formation of modern nation- state, “imagination of institutions”(ways of articulation of nationhood within it a particular understanding of the state or of the question of institutional authority,) and how a nation in an international era is a “modularly transplanted” form that is diffused throughout the globe in and through transnational circuits of capitalism and imperialism. It is the accumulation of hopes and aspirations of the people. From its inception on August 7, 1906 in the Parsee Bagan Square in Calcutta (now Kolkata), it underwent myriad developments till its adoption by Constituent Assembly on July 22, 1947.  It is a horizontally tricolor flag with saffron (or kesari) at the top representing strength and courage of the country, white color in the middle along with Chakra representing peace and truth and dark green in the bottom representing the fertility, growth and auspiciousness of the land. The ratio of width of the flag to its length is two is to three. In the centre of white strip is a navy blue wheel (or Chakra) having 24 spokes adopted from the abacus of the Sarnath Lion Capital of Ashoka.
Since the Nationalist Movement which gave the flag, it has played a pivotal role in various other events like Bengal partition in 1909, the Nagpur Flag Satyagraha in 1923; and movements in the 1930s ’40s, particularly the Civil Disobedience Movement. During the last few years, it has been witnessed that national flag is being appropriated by political parties for political gains, thereby, impacting the secular fabric of the country and dismantling the meaning of the secularism and democracy that arose colonial period. Upto 1980s, drawing powers from Flag Code, 1980, the State maintained its monopoly over the flag and allowed the citizens to hoist it only on selected national days. It is after a short television film “Mera Bharat Mahan” and other Hindi commercials featuring Vande Mataram, national anthem and national flag as sign of Indian identity which espoused nationalism causing the relationship between the citizens and the flag to undergo a change. Compelled by the nationalism driven argument by Navin Jindal (who wanted to fly National Flag atop his factory), the Supreme Court on January 23,2004 ended the State monopoly to hoist flag and liberalized the right to hoist national flag freely with respect and dignity on all days as fundamental right of the citizens. Shortly before this judgment, the Union government accepted the recommendations of its Flag Committee to liberalize the display of flag; Flag Code 2002 came into existence. Nevertheless, with passage of time the political gimmick by Bhartiya Janta Party (BJP) to use flag to create Hindu nationalism (or Hindutva) and redefine secularism in order to win Gujarat Assembly Elections in 2002, became evident. Launch of Tiranga Yatra (flag journey) from September 25, 2004 to February 11, 2005 to unfurl and rejuvenate nationalistic feeling from Hubli in Karnataka to Jallianwala Bagh in Punjab, hoisting flag at Idgah Maidan by Uma Bharti which later aroused riots similar to that of Ram Janma Bhoomi, in 2008 Hindu Janajagrati Samiti shouted “Bharat Mata ki Jai” while marching through the towns with flags in their hands, are major instances of exploitation of National Flag. As a consequence, flag has unnecessarily become betwixt and between meaning of secularism and nationalism as formed in 1947.
India has law governing committal of allegiance by Indian citizens towards its symbolism like national anthem, national song, national flag and other symbols. Law guiding respectful use of National Flag extends to the whole of the country. In the course of development of Constitutional relation between India and Jammu and Kashmir, Jawaharlal Nehru on July 24, 1952 gave details of the terms of the Agreement which they had concluded with the Jammu and Kashmir leaders, amongst which, national flag was one of the subjects which would remain constant throughout the nation. The reason being the historical and sentimental reasons connected with the struggle for freedom. The law intends to punish anyone who shows disrespect to the national flag (by burning, mutilating, defacing, defiling, disfiguring, destroying, trampling etc.) or brings into contempt (through acts, or words written or spoken). Any criticism or condemnation of the Indian Flag done to alter the Indian National Flag does not fall in the ambit of disrespect of National Flag. The ambit of “disrespect to the Indian National Flag” means and includes an act of gross affront or indignity, gross affront or indignity except when required, as a portion of costume, uniform or accessory of any description which is worn below the waist of any person or by embroidering or printing it on cushions, handkerchiefs, napkins, undergarments or any dress material, intentionally displaying the Indian National Flag with the “saffron” down etc. The statutory provisions for ensuring its mandatory compliance have prescribed punishment of three years, or with fine, or with both.
But the means to secure such “symbolism obedience” have often been felt to be aggressive, limiting itself only to respect to symbolism of our Nation rather than the respect to our Nation itself. We are more worried about how our National Flag (including any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag) should look, its fabric, shape, size, who can hoist it, how can it be hoisted, things one must refrain from doing and so on. The presence of legislative backing goes in vain when instances of forced sincerity or lack of sincerity to the National Flag surface up. To begin with, the forced mechanism to pay patronage to the National Flag waving on screens in movie theatre does not give one goosebumps or make one love his/her nation, instead brims one’s mind with the thoughts of what politicians, our bureaucrats have done to the secular involuntary nationalist allegiance owed to which we once bowed before the Indian National Flag.
In August 2012 an F.I.R. was lodged against Bollywood Actor, Shahrukh Khan by Lok Janshakti Party for insulting the tricolor followed by in July 2017 Akshay Kumar (Bollywood Actor) holding the National Flag upside down while cheering for Women’s Cricket World Cup final at the Lord’s Stadium, London. On the occasion of Independence Day in 2017 itself Bollywood Actress Priyanka Chopra was highly criticized for her boomerang video on posted on Instagram, for her choice of wardrobe, swirling a tricolor scarf. Canadian unit of Amazon was objected when found selling distorted Indian flag on doormats and wall stickers, and was made to tender unconditional apology for insulting Indian National Flag when found T-shirts, shoes etc. on Amazon U.S. unit having our flag print . Sachin Tendulkar cutting cake resembling Indian National Flag, drapping death bodies in private funeral, claims of Prime Minister Narendra Modi using National Flag as mere piece of cloth by sitting on it and wiping his face and hands on International Yoga Day and signing National Flag to be presented to Barack Obama, Kerala-based jwellery brand ‘Joylukkas’ publishing Indian Flag without its Ashok Chakra and many more instances.
Yes, our law requires indispensable compliance of Flag Code but the key word to be emphasised here is “intentionally”. The question that arises here for the “desh bhakts” or “die hard patriots” is while they condemn unintentional insult to Indian Flag, what have they done to those who intentionally have abused Mother India and will continue to do so. After 70 years of independence it is time for the citizen of the India to understand the perpetuity of the National Flag as given by S. Radhakrishnan during presentation of “Resolution Re National Flag” on July 22, 1947:
”We must build our Paradise here on this green earth (green). If we are to succeed in this enterprise, we must be guided by truth (white), practise virtue (wheel), adopt the method of self-control and renunciation (saffron)”
The second question that could be asked from the diehard patriots, keepers of democracy, politicians , bureaucrats and law- enforcement authorities, if they literally upheld what the Flag stands for or have they ever felt that they have taken path of Truth and Virtue or have they followed “Ashok Chakra: the wheel of law “while staring at the Flag. Nationalism is not just about boasting but also protecting a tricolor piece of cloth but what it stands for. What will be the point of protecting Mother India’s handkerchief while she is being disrobed and abused.
Indian judiciary being sceptic of public figures like Baba Ramdev, Shri Anna Hazare and Mrs. Kiran Bedi for gaining undue political mileage or meeting commercial ends has time and again reiterated hoisting National Flag as a Fundamental Right in accordance with Section 1(2)(1) in Part II of the Flag Code subject to the provisions in Emblems and Names (Prevention of Improper Use) Act,1950 and Prevention of Insult to National Honour Act,1971, thereby making national flag both a benediction and a beckoning. Our Courts have repeatedly held Flag Code not within the scope of Article 13(3)(a) and so does not violating Article 19(2) of the Constitution of India yet the flag instead of being a symbol of freedom “for all humanity”, or a message that India wants to be friends with every country of the world or being the keeper of the spirit of the flag, we have become paranoid enough not to realise that the Indian Flag was adopted, not by a formal resolution, but by popular acclaim and usage.
Maurice Agulhon has noted, “to have an impact in history it is not sufficient that a color or an emblem be chosen only once, it still needs to be adopted by the people, perceived, received, in short, that it succeeds”. Patriotism is love and devotion to one’s country; the spirit that originates in the love for country. It prompts to obedience to its laws, to the support and defense of its existence, rights, and institutions and to the promotion of its welfare. Patriotism is a sentiment and cannot be forced or imposed on a person by curbing his individual liberty of speech and expression. It has always been said that “Respect cannot be won with force but has to be earned”.
If we analyze the right to freedom of speech and expression, it also include the right to express one’s feeling of patriotism in whichever ever was one likes. Moreover, in the cases of Excel Wear Etc. v. Union of India, it was held that the fundamental right under Article 19 advances reciprocal rights i.e. the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”. Accordingly, ‘right to expression’ and “right not to express” must also be part and parcel under Article 19 of the Constitution of India. From the recent incidents and decisions of the Courts, it is evident that such mandated and coerced display of patriotism compromises our freedom of expression. The government has badly failed to take into account that the expression of patriotism should be left to an individual’s personal choice and ought not to be dictated through a decree or any other means like a government order or law. To do so would be underestimating the institutions of free minds. Therefore, the Indian National Anthem as well as the Indian National Flag, both have been plagued by judicial guidelines to instill the citizens with the feeling of constitutional patriotism and nationalism or if put correctly, enforced or pseudo- patriotism.
The Judiciary, in their pronouncements regarding national Flag and National Anthem, has used the concept of ‘Constitutional Patriotism’ to justify their decisions, but has clearly failed to understand it in its real sense. It is a concept borrowed from German jurisprudence, which denotes allegiance to constitutional principles as a means of fostering social cohesion and dwells on developing a common identity for all citizens over their individual religion, culture, tradition etc. The court’s using this rationale in making it mandatory to play the national anthem and use of the national flag as a means to ‘instill patriotism and nationalism’ is off the mark as the national anthem/national flag, if anything, is symbolic of the nation and not of the constitution. This could spill out disastrous consequences by giving teeth to self-appointed vigilantes alleging to uphold the nation’s pride and honor.
Further, in order to show faith in the constitutional principles, the orders of compelled patriotism contradict the constitutional principles which have always prioritized the fundamental rights over the fundamental duties. And as these judicial decisions have curtailed the fundamental right of freedom of speech and expression, the object of the Judiciary is not fulfilled rather it has gone against the “Constitutional Patriotism”, resulting it in a sham or pseudo-patriotism.
Respect and honor for one’s country depends entirely upon the way we think of our nation. In order to instill the feeling of patriotism the government to work for the betterment and development of the country and for that it should impose laws on its citizens. For instance, laws in order to foster gender equality, to protect environment, to promote unity in spite great diversity of religions. Such legal imposition would definitely help to instill the feeling of patriotism because these all will result in the upliftment of the nation as a whole, because patriotism in true sense is one’s contribution in the development of the nation which can be in any form, but, in future, expecting people to salute curd before eating just because, in 2012, India has declared the Lactobacillus (Lactobacillus delbrueckii subsp. bulgaricus) to be the National Microbe, would be antithetical to the feeling of patriotism and will be termed a pseudo-patriotism.
Atlast, we would like to state that no one should be given the authority to decide what is patriotic and what is anti-patriotic by imposing a norm to display the patriotism against the will of an individual. Patriotism cannot be imposed or measured on a patriotic meter, because in a diverse country like ours, such a meter cannot exist.
This article is written by Aditi Sharma and Alini Successena. Aditi and Alini are students at UPES, Dehradun. This article secured 2th position in the RostrumLegal Essay Competition, 2017.
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 V.K. Naswa v. Home Secretary, Union of India and Ors., (2012) 2 SCC 544.
 Supra Union of India v. Naveen Jindal (2004) 2 SCC 510.
 S. Roy, A Symbol of Freedom”: The Indian Flag and the Transformations of Nationalism, 65 Journal of Asian Studies 495,510 (2006).
 Ibid, at 512.
 Supra 38.
 1979 AIR 25.