“All present in the hall are obliged to stand up to show respect to the National Anthem.”

These may well have been the words of a stern teacher to her carefree wards before a school function. Yet, this portion of the Supreme Court’s interim order in the case of Shyam Narayan Chouksey vs Union of India has an impact beyond the natural interpretation of the words mentioned here. For one, it heralds a bigger role for the judiciary in moulding citizenry than the Constitution foresees.

It must be kept in mind that this is one part of seven directives or guidelines issued by the apex court as an interim order. The case will undergo further hearings and the guidelines may be added on to or refined. For now though, it is imperative to assess the import of this interim order against the benchmark of the Constitution as well laws of the land.

“Article 51A. Fundamental duties It shall be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem.”

The Constitution of India secures for its citizens an array of inalienable and fundamental rights under Part III. Part IV sets up Directive Principles of State Policy, which were described by Dr BR Ambedkar as mere “Instruments of Instruction”. Right after this, the Constitution moves on to Fundamental Duties in Part IVA.

While Directive Principles of State Policy are devoid of any “binding force” on the State, they may still be called upon by courts to answer. On a number of occasions, courts have gone into questions of prohibition, uniform civil code, etc. However, Fundamental Duties are even less enforceable. They are at best gentle reminders to the citizen of his obligations to the society and country. In other words, they are good manners endorsed by the Constitution.

Emergency’s residue

Fundamental Duties were not part of the Constitution originally but were added by the 42nd Amendment based on the recommendations by the Swaran Singh Committee in 1976. It is worth reminding ourselves that Prime Minister Indira Gandhi constituted this committee under the leadership of her party’s president to study the Constitution after she imposed Emergency. Hence, most of the recommendations were predetermined to justify emergency provisions through the bogey of nationalism. Fundamental rights were severely curtailed sure, but, the question was conveniently re-framed to ask the citizens whether they had performed their duty.

Only a few years earlier, the Indira Gandhi government had enacted The Prevention of Insults to National Honour Act 1971. The law penalised those found guilty of intentionally preventing the singing of Indian National Anthem or causing “disturbances to any assembly engaged in such singing” with a jail term of up to three years.

In a famous case that went up to the Supreme Court, three students who followed the Jehovah’s Witness faith were expelled from school for not singing the National Anthem. When the action of the school authorities was challenged in Bijoe Emmanuel vs State of Kerala 1986, Supreme Court held that the students must be readmitted, as they had not disturbed the assembly singing the National Anthem. The ratio of this decision was that the students had not disturbed the assembly or the singing by their non-participation. Applying this principle, would not the same apply to those who choose not to stand during the National Anthem in a cinema hall?

In case a citizen is found sitting and quietly eating his lawfully purchased popcorn during the National Anthem within the closed doors of a cinema hall, can she be penalised? In my opinion, no. Because there’s no law of the land that prescribes punishment for not standing during a rendition of the National Anthem. The Supreme Court, in spite of its awesome powers, can not make law or devise punishment. For that is strictly the domain of the legislature.

If courts were to do so, as a leading blog on Indian Constitution claims, this would become another form of judicial censorship – an example of the courts preemptively taking over executive action and short-circuiting Constitutional guarantees. Such a scenario, in the long term, may be more harmful to the Constitution than a lack of enforced patriotism.

Manuraj Shunmugasundaram is a lawyer practicing in Madras High Court, and a spokesperson for the Dravida Munnetra Kazhagam.