Legal

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This Blog is written by Hiba Abbas from St. Stephen’s College, Delhi University.  Edited by Ravikiran Shukre.

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1.1 INTRODUCTION:

In K. Veeramani v. The Chairman 2017, the petitioner filed for the issuance of a writ of Mandamus under Article 226 of the Indian Constitution.  This writ, translating to “we command” in Latin, is issued to direct a lower court or public authority to perform mandatory obligations that fall within the ambit of its duties. The petitioner challenged the deduction of a mark in a recruitment exam he took in 2013. The contentious question in focus related to the language in which the National Song of India, Vande Mataram, was written first.

The failure of the petitioner to pass the competitive exam was attributed to the deduction of a mark, in the aforementioned question, that he found to be erroneous. While he marked Bengali in his answer script, the correct answer, as stated in the answer key, was Sanskrit. The objective of the petition was to ascertain whether the initial language in which the National Song of India was written in was Bengali or Sanskrit.

Bankim Chandra Chatterjee meticulously penned down Vande Mataram in 1875 to glorify ‘Mother India.’ The song was also incorporated in his Bengali fictional novel called Anandamath, published in 1882. Rabindranath Tagore was the first to sing Vande Mataram in a political context during the congress session at Calcutta in 1896.

The judge highlighted the significance of patriotism in India to honour those who sacrificed their lives for the struggle for freedom. Vande Mataram, according to him, was a unifying song that aided in fostering confidence within individuals. He blames the advancement of technology as the causal factor of changes in people’s lives that led them to neglect their nation. The National Anthem was looked upon as incorporating a deep-rooted national quality and hence, required respect to be shown towards it.  In the name of public interest, the court, in its judgement on 25th July 2017, made it compulsory for the National Song to be played and sung at all educational institutions at least once a week while the same was to be followed in government officers, factories, private companies and industries but at least once a month. Along with this, a translation of the song in English and Tamil was to be made accessible in government websites and social media websites by the Director of Public Information. Justice M.V. Muralidaran also mentioned that in case of a situation where any person or organisation is facing an impediment in singing the song, he/she will not be forced to do the same, on the condition that the problem is capable of being backed by valid and legitimate reasons.

1.2 SIGNIFICANCE OF THIS DEVELOPMENT:

The judgement derives its significance from various controversies that this contentious song has always been subjected to. Although the song acquired its recognition and identity by being depicted as the spirit of India’s struggle for freedom and was an influential source of unity for many, analyzing the particular historical context in which it was composed and published along with its association to specific political philosophies is imperative. The pivotal question at the focal point of these controversies is whether Vande Mataram symbolizes genuine nationalism and patriotism.

The song has been attempted to be interpreted from a multitude of different viewpoints and the principal source of strife is the grievance that the song contains and conveys anti-Muslim connotations and messages. It was met with vehement resistance and condemnation, especially from the Muslim community, who considered the song to be a discordant and problematic portrayal of non-Hindus.

Vande Mataram made its entry into the public sphere with its inclusion in the Anandamath, which was published in the 19th century, a time of extensive dissatisfaction and cultural suffocation due to the British Empire still exercising control over India. During this time, Vande Mataram served to be a formidable apparatus to foster an ardent and zealous spirit. The disharmony and friction the song gave rise to be because of the political context of the Anandamath, which cannot be severed if one wants to engage in a proper reading and interpretation of the song. Historian Tanika Sarkar talks about the political context of the novel.  The background was that of the Sanyasi- Fakir resistance when Bengal was suffering a large-scale agrarian crisis and was hit with three successive famines. The Muslim Nawab was portrayed as the puppet of the East India Company, making decisions on their behest. The blame was put on the Nawab for extracting excessive surplus from the peasants to raise revenues and the subsequent excruciating period that Bengal went through. According to her, the novel’s protagonist depicted the famine as a calamity inflicted upon Hindus by Muslims. The events in the book were drafted under the broad umbrella of Hindu nationhood.

A.G Noorani questioned the secularity of the song by writing about how the song equates India with Hindu female deities resulting in the personification of the motherland as a Hindu goddess. Muslims were apprehensive of reciting the song as they comply with the monotheistic religion of Islam and hence, they found it difficult to revere their country through reference to a personified Hindu deity.

Starting from the 1920s, Hindu communalists used the song as a war cry during communal violence. The Muslim League, from the 1930s, denounced the promotion of the song by bringing the communal aspects into focus. Syed Ali Imam, at the second session of the All India Muslim League in 1908, claimed that the cry of Bande Mataram (as it was initially called) was blanketed under the guise of nationalism but was, in reality, a sectarian uproar.

Although initially, even Mahatma Gandhi acknowledged the apparent patriotism connected to the song, he later accepted the potentiality of it breeding communal distress, and hence, he was opposed to its forceful imposition. Jawaharlal Nehru shared Gandhi’s views and in 1937, while writing to Tagore, he expressed his perturbation regarding the apparent religious inclinations that favored the Hindu community, capable of vexing Muslims. A congress working committee in 1937, while acknowledging the problematic elements perceived by many but still taking note of the vital part it plays in the unification of people and their national lives, allowed for the recitation of only the first two stanzas during national gatherings. The first two stanzas stirred the imagery of Bengal as a benign and peaceful object of reverence.

1.3 IMPACT:

Due to the disagreements and debates regarding the song, the fact that people do not have any choice but to participate in singing the National Song can be destructive. It can be viewed as an attack on the religious and cultural identities of non- Hindus who do not identify with the song due to the reasons mentioned above. If they refuse to follow this order, they will not only be liable for punishment according to the law, but this non-compliance can also cast shadows of doubts regarding their degree of loyalty to the country.

A forceful pledge to the depiction of the country as portrayed by the National Song could serve to be a test of patriotism of non-Hindu nationalists. In case of a situation of failure of this test, it could lead to the exclusion and alienation of these people. The forceful imposition leaves no space for evolving and establishing a mutual understanding of what constitutes as respecting the song.

1.4 CASE LAW:

In 2003, Shyam Narayan Chouksey, moved the Madhya Pradesh High court for the issuance of the Writ of Mandamus. He accused the director of the movie ‘Kabhi Khushi Kabhi Gham’ for disrespectfully depicting the national anthem. Penned down by Nobel Laureate, Rabindranath Tagore. He was enraged at the lack of reaction from the audience as only a small minority stood up. He claimed that such an incident would not have occurred had the Censor Board of Film Certification been more cautious in authorizing the screening of the movie. Reference was made to Article 51A(a) of the Constitution of India, according to which the duty of every citizen of India includes respecting the National Anthem and Flag. The Prevention of Insults to National Honour Act 1971, which makes conveying respect to the National Anthem and Flag mandatory, was referred to. The petitioner was against the usage of the National Anthem is such a way that reaps financial benefits for the person commercializing the Anthem. An evaluation and review of the film were conducted by the Examination Committee upon the filing of a counter-affidavit filed by one of the respondents. According to this review, the central bone of contention was the matter of the audience not standing up upon the playing of the National Anthem. But controlling the response of the public was beyond the scope of control of the movie. According to the board, prior warning of the playing of the National Anthem would result in a break in the flow of the movie. A rejoinder affidavit was filed by the petitioner where he believed that the National Anthem was not an ordinary public-spirited song but was a patriotic anthem set apart from others that. It instills feelings of belongingness, national honor, and pride. He was against the portrayal of the anthem in the movie as he believed it to be anti-national by smearing its integrity. The judgment given by Justice Dipak Misra disallowed the screening of the movie unless the scene that portrayed the National Anthem was cut out.

The petitioner also moved the Supreme Court in 2016 under Article 32 for the issuance of any appropriate writ that would take the necessary measures to foster a respectful and dutiful attitude towards the National Anthem. A core theme that had to be dealt with was identifying what actions and attitudes were considered respectful towards the National Anthem and what was not. Another confusion that had to be cleared was regarding what one ought to do while the National Anthem is being played. An order was passed on 30th November 2016 which enshrined guidelines to be followed by every citizen of India. These guidelines disallowed financial exploitation of the National Anthem, prevented its dramatization, prohibited interruptions while it was being played, banned condensed versions of it, and restrained publicizing of it in a manner that will disrespect it. It also made it obligatory for all cinema theatres to play the National Anthem before the commencement of the movie and made it a requirement for the audience to stand up. During this period, it was compulsory for the entry and exit points to be bolt shut to guarantee a lack of interruptions.

In the next hearing, dated February 2017, the subject of how the physically disabled will stand up in the movie hall to exhibit respect towards the anthem was raised. According to the new guidelines, although they would not be required to get up, they must conduct themselves in a respectful manner while the anthem is played. An order passed by the court provided for the alteration of the order passed on 30th November 2016. This modification provided for the voluntary option of playing of the National Anthem in movie halls.

On 9th January 2018, taking the case of Union of India v. Naveen Jindal as the precedence, CJI Dipak Misra made it obligatory for people to stand up at cinemas that played the national anthem before the outset of movies. Section 3 of the Prevention of Insults to National Honour Act, 1971 was referred to. Whosoever was engaged in activities that consciously attempted to hinder recitation of the National Anthem or sought to originate disruptions to assemblies participated in such singing shall be liable for a punishment that includes imprisonment for a term that may extend to three years or with fine or both. But the playing of the National Anthems was voluntary and left to the discretion of the concerned authorities. The rationale behind this judgment was to prevent activities tantamount to disrespecting the National Anthem as well as foster patriotism. According to Justice Dipak Misra, national symbols are vital in inculcating a sense of nationhood and demand a significant level of respect. When this anthem is sung together, a mechanism of protocol linked to the singings is deeply embedded within the concept of a collective national identity, national integrity, and patriotism. What this judgement tried to achieve was a standardized and homogenous system of expressing respect towards the country.

1.5 ANALYSIS:

This order of the Madras High court is a misguided endeavor to elicit patriotism. These patriotic sentiments mixed with feelings of togetherness are not something that can be forced upon people. The only reliable test for genuine and authentic patriotism is if these attitudes are matured and bred within the individual on their own and unaided. These inclinations have to run their own course and the individual is the only primary agency that can determine the direction, quality, and magnitude of these beliefs. The court in its judgment, although in good faith, has forcefully imposed a standardised mechanism of professing and declaring one’s devotion to the country. But this judgment can be seen in another light which reveals its arbitrary, restrictive and confining nature of expressing people’s love for their country. It can be also be said that this order defies Article 19(1)(a) of the Indian Constitution, that provides for the freedom of speech and expression, to a certain extent where it imposes limits upon the potential actions one can engage in to convey respect towards one’s country.

The controversy that is generally surrounded by the song also makes the judgement questionable. Non- Hindus are not always comfortable with and willing to partake in the singing of the song because of the opinion that this song is out of their reach due to the non-alignment of it with their beliefs. This grudging acceptance of the judgement, associated with the fear of receiving punishment if not complied with, is bound to give rise to dissatisfaction and discontent.

Another pivotal concept to be discussed is the fact that there is no reference to a National Song in the Constitution of India. In February 2017, the bench of the Supreme Court headed by Justice Dipak Misra rejected to entertain a plea entered by Ashwini Upadhyaya that sought to publicize and propagate the song by claiming that it should be elevated to a status at par with the National Anthem. This was because Article 51A only refers to a National Flag and National Anthem and the concept of the National Song is not constitutionally mandated. A lack of constitutional backing of this song makes the judgement that imposes the national song to invoke patriotism makes it more problematic. Considering the absence of an authorized constitutional status for the National Song, it is debatable whether the obligatory singing and playing of it fall within the purview of protecting and conserving the fundamental duties.

The court had held that those who struggled with singing the National Song or had difficulties in doing so would not be compelled or obligated to do so. But this was conditional. To not be forced to participate in the recitation of the song was contingent on the availability of valid reasons. The court failed to enshrine and detail out what the valid reasons were. Hence, this is capable of invoking uncertainties, confusion, and perplexities.

Another problematic theme is the forceful imposition upon people to sing Vande Mataram while it is being played. Even in the Ashok Narayan Chouksey verdict mentioned above and the landmark case of Bijoe Emmanuel v. State of Kerala 1986, there were no obligations upon people to sing the National Anthem. The National Anthem even carries with it a constitutional status. The compulsion imposed upon people was to stand up while it is played.

The court also went beyond the scope of Article 226 in its judgement. The petition, which had to do with the inaccurate denial of marks, had nothing to do with the second part of the judgement that was delivered. Article 226 is in place to protect the fundamental rights of citizens but it is dubious whether the reciting and playing of the National Song is in any way connected to the appropriate enforcement of fundamental rights. The court, while directing the Teachers Recruitment Board to award the mark to the petitioner, transcended the boundary set by this article to make the playing of Vande Mataram compulsory in certain institutions for a certain number of days. The question of eliciting patriotic feelings was never a theme encompassed in the petition.

1.6 CONCLUSION:

The crux of the matter is whether legitimate patriotic feelings can be instilled within individuals forcefully and with the overarching fear of prosecution. Taking account of the fact that the Supreme Court observed a lack of constitutional recognition of the National Song is of paramount importance since the Madras High Court’s order can be seen as a contravention to that decision. Patriotism is a sentiment that has to come from within and forceful imposition of it is not capable of imbibing these values within people. These attitudes are acquired by people by themselves, whether it is by general experiences of life or by processes of rationally understanding concepts and things around them. There is no doubt about the National Song’s potential for promoting and fostering unity, given that it was a significant source of the same during India’s struggle for freedom. It is capable of transcending the boundaries of languages and inhabits a notable position in one’s national life. But this feeling might not be shared by all and hence, the displeasure and feelings of resent that this judgement might bring forth could serve to be harmful in the long run.

1.7 REFERENCES

(1) P.No.32316 of 2013.

(2) AIR 2003 MP 233.

(3) (2004) 2 SCC 510.

(4) Writ Petition (Civil) No. 855 Of 2016.

(5) 1987 AIR 748.

(6) Sarkar, Tanika. “Birth of a Goddess: ‘Vande Mataram’, ‘Anandamath’, and Hindu Nationhood.” Economic and Political Weekly, vol. 41, no. 37, 2006, pp. 3959–3969. JSTOR, www.jstor.org/stable/4418703. Accessed 16 Sept. 2020.

(7) Noorani, A. G. “Vande Mataram: A Historical Lesson.” Economic and Political Weekly, vol. 8, no. 23, 1973, pp. 1039–1043. JSTOR, www.jstor.org/stable/4362722. Accessed 16 Sept. 2020.