NEW DELHI: In 2016, the citizenry of India was witness to two remarkable decisions taken by commanding institutions of our Constitution.
Here I do not address the Government’s act of impounding notes. Instead I look at the curious case of the national anthem order. To understand why the national anthem case is an aberration, we must not only understand the reasoning of the order, but the judicial claim made on the politics of the Constitution.
However, first the decision must not become an occasion to undermine social action litigation.
Second, it is important to understand the Courts much needed incidental interference in the political thicket to defend the “independence of judges” as witnessed in the NJAC case ,and “federalism” as in the case of Arunachal Pradesh and Uttarakhand, are quite different from what we see in the national anthem order.
To understand the nature and the subsequent repercussions of the order, we must first examine the nature of Part IV and IV-A of the Indian Constitution. Part IV of the constitution consists of the Directive Principles of State Policy which lays down constitutional goals that the State must strive to fulfil.
Article 37 of the Constitution is very clear that the provisions under the Directive Principles are not enforceable by any court, that is one cannot approach the court and seek a judicial order to fulfil a provision of the Directive Principles. The Principles do not prescribe any manner through which these goals must be achieved. It is through these principles that the Constituent Assembly articulated goals that the State must work to achieve, for example securing a social order for the welfare of the people, securing a right to work and education, securing equal justice etc.
In 1976, through the 42nd amendment to the Constitution, the government created Part IV-A in the Constitution and titled this part as “fundamental duties”.
This amendment created certain constitutional ideals towards which citizens should aspire. For instance, the duty to promote harmony and common brotherhood, protect the environment and to respect the national flag and anthem (Article 51-A) amongst other ideals. Importantly there was no prescribed manner laid down on how such goals were to be actualised.
Returning to the anthem order, the Supreme Court exercising its jurisdiction under public interest litigation has made it obligatory by law that commercial establishments (movie theatres) across India will play the national anthem before every movie screening. And that all citizens present must show their respect by standing in attention.
The Court through an interim order has thereby had the profound effect of writing into the fundamental duties of the Constitution. The order has attempted to script the political imagination of nationalism, an idea that remains unstated yet embedded across articles of our Constitution, into a legally binding act. This decision attempts to directly institutionalise how modern Indian citizenship is to collectively express national identity.
Before proceeding further, one would like to clarify that there is no doubt that the constitutional courts have an essential role in shaping social change in India.
One may go back to the 1970’s cases of Privy Purses and Bank nationalisation where the institutional disagreement between the Courts understanding of Fundamental Rights and the Legislatures view on fulfilling the directive principles of the State saw constitutional rights evolve progressively.
‘Later in the 1980’s there was another phase where the court under Justice Krishna Iyer and P.N. Bhagwati gave a liberal interpretation to locus standi (capacity to bring action to court) giving rise to public interest litigation. The Court endeavoured to expand the meaning of individual liberty so as to include collective rights of the economically and socially backward . The latter approach to fundamental rights was more in sync with the Nehruvian idea of social justice.
However, what we witness today in the national anthem case is an attempt by the Court to exercise jurisdiction for arguing a political ideology for India.
The apex court extraordinarily has not moved as it usually does in PIL’s to protect individual rights from state action. Instead it has proceeded to define nationalism as to be understood under the Constitution.
Late Prime Minister Jawaharlal Nehru, though an important voice on ensuring that the judiciary finds prominence and independence in our Constitution also anticipated difficulties in the judiciary’s role in bringing about socio-political change.
Nehru, himself a trained lawyer was sceptical on the role of the judiciary in understanding the processes of change. He argued that the expression of law through judgements were a result of precedents and jurisprudential principles that would often fail to include the ideas of social and economic movements of a country.
In his time, Nehru saw a philosophical divide in the legislatures approach towards economic democracy via the Directive Principles and the court’s interpretation on what individual rights signify.
This began in the early 1950’s when Nehru pushed for land reform legislations and at times found the Court passing orders declaring some of the legislative decisions to be unconstitutional. He however might have not anticipated a time when the Judiciary would define what the Constitution would consider to be a patriotic act, something which the Constituent Assembly never sought to attempt.
The appropriation of national symbols by defining these has not been done in the Constitution and cannot be done by any institution resulting from the Text.
The Judgement attempts to evoke the collective identity of a nation and finds the shared action of singing the anthem jointly to bring about uniformity and thereby unity.
However, unity is not attained by ensuring uniformity. In fact it is India’s plurality and diversity which defines the collective.
In India’s rich political history social movements by different sections of people have not taken place to merge with the majority but to assert their identities and interests while seeking protection of constitutional liberties to express themselves.
The Judiciary in a constitutional democracy must avoid judgements that coerce a citizenry into acts which attempt to legally define their politics.
It will be interesting to see how the Court in the coming future deals with the political concept of nationalism. This is because the current political establishment will continue to push its idea of what is national through policy and rhetoric. Unsurprisingly, for the current Government policy and rhetoric are indistinguishable.
We live in times where a frantic attempt is underway to mobilize India towards an uncertain future, led by a Government whose idea of India or the lack thereof is now slowly being unravelled.
During such time the Judiciary must recognise that the Constitution recognised the courts as a protector of individual rights, the federal structure and the plural nature of our national identity.
The Court must fulfil its role as an anti-majoritarian institution by avoiding exercising jurisdiction on the unwritten political texts of the Constitution. It however must bravely continue to defend the judicial texts.
(Abhik Chimni is an advocate)