Expressing Patriotism over Freedom of Speech and Expression: A Judicial Overreach by Supreme Court | Important Acts and Laws for Judiciary Exams PDF Download

Introduction

• India, with its historical backdrop, cherishes numerous patriots who valiantly safeguarded the nation's safety, integrity, and above all, its freedom, crucial for evolving as a democracy. The architects of our constitution viewed Freedom of Speech and Expression as the bedrock of democracy, enshrining it in Article 19(1)(a) and entrusting the executive, judiciary, and legislative branches with upholding principles of justice and liberty.
• In contemporary times, these pillars have faced rigorous challenges, yet upheld citizens' freedom of speech and expression while ensuring domestic tranquility under Article 19(2). The judiciary, leveraging its authority from Article 141 and 142, has played a pivotal role in interpreting the constitution, steering social progress, and rendering its judgments binding and enforceable nationwide.

Curtailing Freedom of Speech and Expression with Constitutional Patriotism

• The Supreme Court of India, in a recent judgment involving the case of Shyam Narayan Chouksey, has made significant decisions regarding expressions of patriotism in cinema halls.
• A three-judge bench, consisting of Chief Justice Deepak Mishra, Justice Khanwilkar, and Justice DY Chandrachud, overturned a previous ruling that mandated the playing of the national anthem before every film screening.
• While the new judgment has made playing the national anthem optional, it still enforces the requirement to stand as a sign of respect.
• The focus has shifted towards promoting constitutional patriotism over individual rights in this context.

Analysis of the Supreme Court's Decision

• The Supreme Court has historically utilized its powers to safeguard the interests of individuals and communities, but there have been instances where it has imposed norms on public life.
• One such example is the mandate to stand during the national anthem in cinema halls, a move that has sparked debates on the limits of enforcing patriotism.
• Patriotism is a personal and emotional sentiment that should ideally stem from an individual's genuine feelings rather than being compelled.
• The Supreme Court's enforcement of compulsory patriotic expressions in public spaces has raised concerns about the violation of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution.
• This enforcement falls outside the exceptions listed in Article 19(2), as it does not pertain to the interests of sovereignty, integrity, public order, decency, morality, or state security.
• Moreover, it contradicts the Fundamental Duty outlined in Article 51(1), which primarily focuses on respecting the Constitution, its values, and institutions without legal repercussions for non-compliance.
• As a result, this enforcement not only infringes upon an individual's freedom of expression but also reflects an instance of Judicial Overreach.

Overview of Free Speech and Constitutional Patriotism

• It is widely accepted that limitations on free speech can only be imposed under Article 19(2) through the enactment of a law by the legislature.
• Any restrictions under Article 19(2) must be "under the authority of law," and only reasonable restrictions are permissible in the absence of specific legislation.

Constitutional Patriotism Concept

• Constitutional Patriotism is a concept from German Jurisprudence emphasizing complete allegiance to constitutional principles to foster social unity.
• It focuses on creating a shared national identity based on constitutional values rather than individual cultural or religious distinctions.
• Initially introduced by philosopher Karles Jaspers post-World War II in Germany to promote unity.
• The Supreme Court has repurposed this concept to promote patriotism through the national anthem, not constitutionally related symbols.

Issues with Mandating National Anthem

• Justice DY Chandrachud highlighted concerns with mandating standing during the national anthem.
• He emphasized that patriotism should not be judged by such actions and that citizens have the right to freedom of expression.
• Using the national anthem in this manner could lead to excessive government control over personal freedoms.

The Right to Expression and Patriotism

• Article 19 encompasses the right not to express, in addition to the right to expression.
• Patriotism should be a personal choice, not enforced by laws.
• Our Constitution's framers emphasized respecting the national anthem without rigid mandates.

Shelter of Article 51A

• The Supreme Court sought refuge in Article 51A to mandate standing during the national anthem.
• Enforcing fundamental duties through writs is limited; they aid in interpreting laws.
• The Court's assertion made fundamental duties enforceable under Article 142, risking contempt charges for non-compliance.
• Justice Chandrachud highlighted the broad scope of Article 51A, encompassing duties like developing humanism and scientific temper.
• The judgment's ambiguity may lead to misinterpretations and confusion among the public.
• Judgement guidelines necessitate standing for the national anthem before a movie begins, but are unclear about when it plays within a film, leading to arbitrary implications.
• By introducing a patriotism test in cinemas, the court oversteps its boundaries, imposing nationalist ideals on individuals seeking entertainment, rather than upholding constitutional freedoms.

Judicial Overreach

• Author Shylashri Shankar expresses concerns over the anthem ruling, suggesting it emphasizes nationalism and Indian identity.
• Rights and duties are intended to remind citizens of democratic behavior, but coercing patriotism through such obligations is deemed immoral.
• The Supreme Court's decision diverges from Justice OC Reddy's view that there is no legal obligation to sing the national anthem, advocating for tolerance and respect for differing traditions.

The Importance of Freedom in Expressing Respect

• It is not mandatory to stand for the national anthem to display respect.
• Enforcing individuals to participate in a display of nationalism is against the democratic principles.
• A free society should permit individuals to express themselves freely, even if it involves criticizing the government.
• When the government mandates standing for the anthem, it restricts this freedom of expression.

Role of the Judiciary in Upholding Freedom and Independence

• The Supreme Court's ruling wrongly connects standing with demonstrating respect.
• This decision seems to contradict previous legal precedents and the right to freedom of speech.
• An independent judiciary is crucial for a democratic society.
• Judges appointed to the judiciary must ensure its integrity and independence.
• It is imperative that judges do not misuse their independence to create a judiciary influenced by populism rather than legality.
• Judges should exercise discernment and maintain high quality in their judgments.
• It is vital that the judiciary demonstrates a profound understanding when citizens' fundamental rights are at stake.

Conclusion

• The respect and affection for one's country or its national symbols cannot be imposed on citizens; it must be inherent and earned. Each person has their own way of expressing these sentiments, and they have the freedom to do so under Article 19(1)(a) of the Constitution. This applies to feelings of patriotism and nationalism as well. There is no specific method to demonstrate these feelings; some may stand, while others may choose to serve in the national forces or critique the government publicly. While it is a Fundamental Duty under Article 51A to show respect for the national anthem, it cannot be enforced upon the public, as Fundamental Duties are not legally enforceable.
• Courts have invoked the concept of Constitutional Patriotism to justify their rulings, but this often misinterprets respect through actions like standing, imposing preconceived notions of patriotism and nationalism instead of the constitutional values of tolerance and the right to remain silent. The Constitution's Preamble emphasizes liberty of thought and expression, and suppressing this liberty is undemocratic, especially coming from the judiciary, whose role is to ensure justice and protect rights. Rabindranath Tagore, the author of our national anthem, had controversial views on nationalism, emphasizing the importance of civil society and criticizing the imposition of nationalism. He believed that unity among a diverse society should not be achieved through compulsory displays of nationalism.
• The Supreme Court's judgment, by imposing its interpretation of patriotism and nationalism, represents judicial overreach, particularly at a time when the country is facing challenges and relying on the judiciary for landmark judgments like the Vishaka case, which promote positive societal changes and protect the rights of minorities and marginalized groups.