Nakul Dewan.Apart from the Indian media, which has extensively covered the Supreme Court of India’s 30 November interim order in S.N. Chouksey vs Union of India relating to the mandatory playing of the National Anthem in cinemas, the International Edition of the New York Times carried an article in their print edition of 2 December..This piece quoted from an interview with the 78 year old petitioner, Mr. Chouksey, where he stated that the inspiration for his petition to the Supreme Court on the National Anthem was an incident that took place 15 years ago when the National Anthem was played in a cinema and he was the only person standing..Mr. Chouksey’s quote goes “[t]he people sitting at the back objected, and said, ‘Let us watch the movie,’” he said. “It hurt me very badly.” .In a constitutional case looking at the regulations pertaining to the National Anthem, apart from perhaps determining Mr. Chouksey’s locus, it should matter little which particular movie or which cinema hall Mr. Chouksey went to, or whether he personally felt hurt..That is simply because there are Government Orders which accompany The Prevention of Insults to National Honour Act, 1971 and the exclusion which allows people not to stand at attention when the National Anthem is played as a part of a film (newsreel or documentary), is what needs to be constitutionally tested..Similarly, even the final direction in the interim order, which disallows the playing of the abridged version of the National Anthem despite the abriged version being recognised by Government Orders and allowed to be played by the Armed Forces in Messes when drinking a toast, needs to be constitutionally tested..In fact, the fundamental purpose of the Act along with the Government Orders is to draw a fine balance between maintaining the honour and dignity associated with the national anthem, while leaving it to the good sense of people in not indulging with its indiscriminate singing or playing..While the criticism which appears to be emerging against the interim order is in relation to the mandatory direction requiring the National Anthem to be played in cinema halls as well as perhaps its possible effective enforcement, there is a very important aspect which appears to underline the Supreme Court’s order. That is, of the Supreme Court equating the National Anthem to be a symbol of constitutional patriotism..This is a new concept being introduced into Indian constitutional jurisprudence and comes from a doctrine propagated by German sociologist and philosopher Jürgen Habermas, under which people form an attachment to the norms and values of a pluralistic liberal democratic constitution, rather than to a particular culture. Interestingly, the concept emerged after the Second World War to ensure political stability in Germany..Even though the reference to constitutional patriotism is only set out in two lines in the interim order, it could be a significant step if this doctrine is to form the basis of the eventual decision of the Court. Applying this doctrine would naturally require the Court to balance the constitutionally protected Fundamental Rights of citizens to free speech as well as the right to carry out their profession and trade..In a recently uploaded one and a half minute video of the American cartoon The Simpsons on You-Tube, the father Homer Simpson smacks his ever prankster son Bart to stand at attention and place his right hand over his heart when the American national anthem is played before the start of the football game. Within a few minutes, the scene changes to a bored Homer and Bart slumbering on to their seats along with a contagiously yawning audience, because of an overly elongated remastered opera version of the American national anthem. The Simpsons reflect a quintessential example of an average American family and the cartoon, a mere satire, is not in any way meant to be disrespectful or unpatriotic. It is simply the American acceptance of free speech which is protected under the American Constitution..The Supreme Court, while finally hearing this case, would need to balance these rights, even if it considers it under the now seeming to emerge head of constitutional patriotism..Nakul Dewan is an Advocate practising in the Supreme Court of India. He is also called to the Bars of Singapore and England & Wales.
Nakul Dewan.Apart from the Indian media, which has extensively covered the Supreme Court of India’s 30 November interim order in S.N. Chouksey vs Union of India relating to the mandatory playing of the National Anthem in cinemas, the International Edition of the New York Times carried an article in their print edition of 2 December..This piece quoted from an interview with the 78 year old petitioner, Mr. Chouksey, where he stated that the inspiration for his petition to the Supreme Court on the National Anthem was an incident that took place 15 years ago when the National Anthem was played in a cinema and he was the only person standing..Mr. Chouksey’s quote goes “[t]he people sitting at the back objected, and said, ‘Let us watch the movie,’” he said. “It hurt me very badly.” .In a constitutional case looking at the regulations pertaining to the National Anthem, apart from perhaps determining Mr. Chouksey’s locus, it should matter little which particular movie or which cinema hall Mr. Chouksey went to, or whether he personally felt hurt..That is simply because there are Government Orders which accompany The Prevention of Insults to National Honour Act, 1971 and the exclusion which allows people not to stand at attention when the National Anthem is played as a part of a film (newsreel or documentary), is what needs to be constitutionally tested..Similarly, even the final direction in the interim order, which disallows the playing of the abridged version of the National Anthem despite the abriged version being recognised by Government Orders and allowed to be played by the Armed Forces in Messes when drinking a toast, needs to be constitutionally tested..In fact, the fundamental purpose of the Act along with the Government Orders is to draw a fine balance between maintaining the honour and dignity associated with the national anthem, while leaving it to the good sense of people in not indulging with its indiscriminate singing or playing..While the criticism which appears to be emerging against the interim order is in relation to the mandatory direction requiring the National Anthem to be played in cinema halls as well as perhaps its possible effective enforcement, there is a very important aspect which appears to underline the Supreme Court’s order. That is, of the Supreme Court equating the National Anthem to be a symbol of constitutional patriotism..This is a new concept being introduced into Indian constitutional jurisprudence and comes from a doctrine propagated by German sociologist and philosopher Jürgen Habermas, under which people form an attachment to the norms and values of a pluralistic liberal democratic constitution, rather than to a particular culture. Interestingly, the concept emerged after the Second World War to ensure political stability in Germany..Even though the reference to constitutional patriotism is only set out in two lines in the interim order, it could be a significant step if this doctrine is to form the basis of the eventual decision of the Court. Applying this doctrine would naturally require the Court to balance the constitutionally protected Fundamental Rights of citizens to free speech as well as the right to carry out their profession and trade..In a recently uploaded one and a half minute video of the American cartoon The Simpsons on You-Tube, the father Homer Simpson smacks his ever prankster son Bart to stand at attention and place his right hand over his heart when the American national anthem is played before the start of the football game. Within a few minutes, the scene changes to a bored Homer and Bart slumbering on to their seats along with a contagiously yawning audience, because of an overly elongated remastered opera version of the American national anthem. The Simpsons reflect a quintessential example of an average American family and the cartoon, a mere satire, is not in any way meant to be disrespectful or unpatriotic. It is simply the American acceptance of free speech which is protected under the American Constitution..The Supreme Court, while finally hearing this case, would need to balance these rights, even if it considers it under the now seeming to emerge head of constitutional patriotism..Nakul Dewan is an Advocate practising in the Supreme Court of India. He is also called to the Bars of Singapore and England & Wales.
