It is understandable, given its timing, that the Supreme Court order making it mandatory for the national anthem to be played before any screening of films did not receive the attention it would have. With the nation confronting a far graver challenge — and one that involves every citizen — patriotic symbolism has taken a back seat to the questions of livelihood and the economic future of the nation. Yet, despite the perfunctory nature of the public discussion, even the limited debate on the national anthem issue has been extremely instructive.
First, the order having been handed down by a Supreme Court judge, the usual bout of political rancour has been absent. While there have been tangential references to the “Modi age” and the supposed environment of hyper-nationalism that has infected India, the opponents of the move have desisted from linking the judgment to any “intolerance” of dissent. Had the order come from the government — as it did when Indira Gandhi, in her capacity as Information and Broadcasting Minister in the Lal Bahadur Shastri government first made the national anthem obligatory after a cinema screening — the issue would have been deeply politicised. Certainly, the present Chief Ministers of Delhi and West Bengal would have protested from the rooftops.
Secondly, it is noteworthy that the few voices of protest have emanated from people who have otherwise been strong champions of judicial activism. There exists in today’s India a band of activists that believe that all the supposed iniquities that plague India can be set right by judicial intervention. These people believe that the political class is incapable of addressing the true interests of the people, and that it is up to the judiciary to make the country a much better and more wholesome place to live in. Thus, rather than pressing Parliament, they have taken issues such as the repeal of section 377 of the Indian Penal Code and the system of triple talaq in Muslim Personal Law to the courts. Depending on the judges hearing the case, the judiciary has selectively obliged. The belief is that once the judiciary has given its verdict, any decision goes outside the purview of Parliament.
This is a wrong conclusion. Parliament still has the right to overturn any court judgment — as it did in the case of the Shah Bano case centred on the payment of alimony to a divorced Muslim woman. But that is not the point. What is relevant is that a large section of so-called enlightened opinion in India feels that the courts must guide the application of political democracy. It is one thing for the courts to pronounce on the Constitutional validity of any legislation. What has happened, however, is that the courts are expected to take over the function of the government and even executive responsibilities.
Most of the champions of judicial activism don’t like the national anthem judgment of the Supreme Court. Some see it as an encroachment of individual and group freedom. Others are miffed that the judiciary has endorsed the spirit of nationalism and committed itself to India. And finally, there is a section that feels that the Supreme Court order, while well-intentioned, will dilute the solemnity and even sacredness of the national anthem. All these misgivings have some merit. Unfortunately, neither side in the national anthem debate seem interested in broaching the central question: why should the courts be deciding on the matter in the first place?
For quite some time, in fact ever since the Supreme Court started taking cognisance of postcards as Public Interest Litigation, there has been a trend towards the judiciary perceiving itself as a supra-political body. In old-fashioned state functioning, the executive and legislature made law in conjunction and the courts assessed their validity in terms of the Constitution and natural justice. In day-to-day matters the courts were entrusted with the application and interpretation of the law.
Alas, this conservative view of judicial powers has been replaced by a philosophy that sees judiciary as an instrument of political change. The view that the judiciary must be a step ahead of the legislature and executive is about as ill-considered as the view — popularised during Indira Gandhi’s socialist phase — that the judiciary must be “committed” to bolstering the government in power.
Today, India is witnessing all sorts of bizarre applications of judicial powers. We have witnessed deliberations on Sardarji jokes, the implementation of the demonetisation programme and even an order that provides lifetime security to judges. The law is being made through judicial pronouncements.
This is patently wrong. There is a place for the courts and a place for law makers and the two should, ideally, not overlap. There have been too many encroachments of judicial authority and the national anthem order is just the most recent example. Since it has, in the process, offended those who otherwise believe that change should come by arguing before the courts and not necessarily voting for change, this issue is as good as any to persuade them that their enthusiasm is misplaced. There is an important distinction between social philosophy and the law, and the latter should ideally not embrace the former.
Having said that, I don’t think India will be worse off if the national anthem is sung, with due solemnity, at all places where it has a place. Somehow I don’t think the cinema hall fits the bill. But then my observation is merely backed by common sense. Is the legal order backed by law?
The author is a senior journalist and Member of Parliament, being a Presidential Nominee to the Rajya Sabha.
