Supreme Court must know liberty is supreme, not patriotism

The Supreme Court has once again displayed a poor understanding of individual liberty. As I’ve said before - and it’s worth repeating - your freedom ends where my nose begins.

Individual liberty, within reasonable bounds, lies at the heart of democracy. Compelling citizens to stand up when cinema halls play the national anthem will have precisely the opposite effect from what the Supreme Court intended.

Many will justifiably resent being told by the state what to do, where, and when. It will certainly not engender nationalism. Patriotism can’t be force-fed. 

Most Indians anyway stand up when the national anthem is played. But to play it in cinema halls before every film is itself excessive: the anthem loses its soaring emotive appeal. To further compel people to stand up for the anthem violates individual liberty. And to prevent them from leaving the theatre by locking the exit gates before the anthem begins compounds the folly.

Apart from delivering a judgment that is flawed in principle and impractical to implement, the Supreme Court has taken the law back by a century. This is what the operative part of the judgment says: “It is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag.

“Be it stated, a time has come, the citizens of the country must realise that they live in a nation and are duty-bound to show respect to the National Anthem which is the symbol of Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights. The idea is constitutionally impermissible. 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.”

Note these words in particular: “Constitutional patriotism... does not allow any different notion or the perception of individual rights.”

This must be among the most regressive sentences in a Supreme Court judgment in decades. “Individual rights” are sacrosanct - with only reasonable restrictions. Not standing up during a national anthem may be distasteful but compelling citizens to do so is an unreasonable restriction on individual rights. Being a boor is not a crime.

The phrase “constitutional patriotism…does not allow any different notions or perceptions…” is equally regressive. Democracy is founded on precisely “different notions and perceptions.” Take those differences away and you take away the essence of liberty.

The Supreme Court exists to guarantee fairness and justice and to protect the weak from the strong. This judgment, like several others in recent months, does neither.

The Supreme Court has erred far too frequently in recent years on key issues. It has fought a running battle with the government on the collegium system of picking judges. As Justice Chelameswar, a member of the collegium, said: “I have written a letter (to the CJI) informing him that I will not be participating in the collegium's meetings henceforth. The system of selection of judges is not at all transparent. No reason, no opinion is recorded. Just two people decide the names and come back to the meeting and ask for a yes or no. Can a judge of the SC or HC be selected in such a manner?"

The Supreme Court meanwhile has ducked several important issues: it has not constituted a seven-member bench, as it had pledged, to review its 1995 judgment defining Hindutva as a way of life.

It has not meaningfully pursued contempt proceedings against the Centre and states for defying its 10-year-old order on police reforms that lie at the heart of improving India’s criminal justice system.

The Supreme Court was unable to force its writ on Karnataka in its dispute with Tamil Nadu over sharing an additional allocation of Cauvery waters.

The apex court also mothballed the controversial Ram temple issue for years. It has now finally agreed to schedule day-to-day hearings on Dr Subramanian Swamy’s petition. 

The court though has been justifiably proactive in cleaning up the BCCI. But while it delivered its verdict in July 2016, the BCCI defied the apex court for months before being reined in.

In the US, Supreme Court justices are nominated by the executive branch. The American President chooses judges based on ideology. This is clearly an unacceptable system for India. The executive branch cannot be the sole arbiter: that flies in the face of balance of power between the executive, judiciary and legislature.

But India’s collegium system for selecting judges in the higher judiciary remains deeply flawed. Justice Chelameswar has been unusually blunt about the defects in the collegium. Meanwhile, the stand-off between the government and the Supreme Court continues.

Unless the latest draft of the government’s Memorandum of Procedure (MoP) for selecting judges is accepted by the Supreme Court (which has sat on it for four months), the government is unlikely to relent on clearing the names of judges sent to it by the apex court.

The criminal justice system has failed Indians. It has in particular failed those most needing its protection: the poor. Countless undertrial prisoners rot in jail far beyond the maximum sentence they would have received had they been convicted.

Instead of remedying these injustices, the Supreme Court is intruding into matters that should not be its concern: the national anthem.

Wiser counsel must prevail and the order reviewed. India has many more pressing judicial matters that need the Supreme Court’s undivided attention.

Also read: Standing up for national anthem is fine, but what about disrespecting the flag?