The obligation to sing the national anthem is an issue that has garnered attention on numerous occasions. The singing of the national anthem is often regarded as a symbol of nationalism. While standing up in an attention position during the national anthem is a mark of respect, on the other hand, obligating one to forcefully sing the national anthem to showcase their patriotism is an intrusion upon a person’s fundamental right to freedom of expression. This issue once again gained traction after a Supreme Court bench headed by Justice Deepak Mishra passed an interim order that all movie theatres must play the national anthem before the screening of every movie mandatorily. A duty was also imposed upon the entire audience in the theatre to stand up during the national anthem. The move was instantly criticised by a number of human rights activists who saw this as a curtailment of their rights. The court has justified their position by holding that the purpose behind this measure is to ‘instill the belief that they are all Indians’. In equating patriotism with the obligation to play the national anthem in theatres, the court has blurred the distinction between what is regarded as ‘forced patriotism’ and an individual’s ‘freedom of expression’. Patriotism is an extremely personal feeling, strongly connected to one’s own sentiments with respect to their nation, community, society, etc. To have to prove one’s patriotism seems like an unreasonable restriction. In this article, the author aims to discuss some of the landmark rulings worldwide on the clash between freedom of expression and patriotism. Further, the article critically analyses the interim order of the Supreme Court in light of the on-going debate between the opposers and the advocates of forced patriotism.
Landmark Rulings on Forced Patriotism
One of the early instances where the court faced this issue was in 1985 in the case of Jehovah’s Witness. In this case, three children belonging to the Christian denomination known as Jehovah’s Witness refused to sing the national anthem in their school in Kerala. While upholding their constitutional rights, the Supreme Court, in the landmark case Bijoe Emmanuel v. State of Kerala, held that: “there exists no provision of law that obligates anyone to sing the national anthem.” The court held that since the Jehovah’s Witness honestly believe that singing any national anthem would be against their beliefs, therefore, expelling the children on this account would be a violation of both their freedom of religion as well as their right to free speech and expression.
The Jehovah’s Witness case became a celebrated judgement in the realm of both freedom of expression and freedom of religion. The court manifestly laid down that though fundamental rights are not absolute but subject to public order, morality and health, the State is obligated to not impose arbitrary and disproportionate restrictions on its citizens. For instance, compelling every person to sing the national anthem “would clearly contravene the rights guaranteed under Article 19(1)(a) and Article 25(1) of the Constitution of India.” The case marked an important precedent for subsequent cases. In addition, the court in the case of Excel Wear v. Union of India held that all fundamental rights under Article 19 come with corresponding reciprocal rights. This implies that the right to freedom of expression includes within its ambit the right to not express. Whether or not, and in what manner, one should express their patriotism is a matter of great privacy. To rob a person of this choice is an infringement of their ‘right to not express’.
With regard to forced patriotism, the US Supreme Court passed a landmark judgement in the case of West Virginia State Board of Education v. Barnette. While dealing with the constitutionality of a resolution that allowed schools to expel students for refusing to salute the flag and undertake the Pledge of Allegiance, the court held that forcing students to do so is a violation of their right to free speech and expression. Justice Robert Jackson, in the course of the judgement, gave his famous view on the matter. His view that patriotic ceremonies must not be forced upon but should be voluntary, gathered popular support at the time. The court held that by forcing to salute the flag the authorities have invaded “the sphere of intellect and spirit”, which is contrary to the intention behind freedom of speech and expression guaranteed under the First Amendment.
Over the past couple of decades, the stance of courts regarding this issue has been clear. Courts have predominantly viewed forced patriotism as a restriction on one’s freedom of expression. However, the Supreme Court’s order in Shyam Narayan Chouksey v. Union of India (“Shyam Narayan”) that made it mandatory for cinema halls to play the national anthem appears to have neglected these precedents, some of which have played a crucial role in establishing the Article 19 jurisprudence of India.
The Debate on Enforced Patriotism
The forced patriotism versus freedom of expression debate involves two extreme sets of opinions put forward by their respective proponents. Those in favour of enforced patriotism argue that collective expression and sentiments have a positive impact on society. In a land as diverse as India, the national anthem is a common symbol for unity and brotherhood. Moreover, if implemented legitimately by the State institutions, such forced patriotism cannot be said to be violating anybody’s rights. Opinions have also been expressed that citizens’ identity is largely dependent on their State and hence, they must be willing to give up a part of their freedom to ‘show and display respect towards national symbols in a collective environment’. Advocates supporting imposed patriotism have argued that the legal basis for mandating the national anthem in cinema halls can be found in Article 51A(a) of the Constitution. Article 51A(a) of the Indian Constitution places a fundamental duty upon the citizens of India to respect the national flag and the national anthem of our country. As a result, the supporters of enforced patriotism consider the Shyam Narayan Order of the Supreme Court to be in consonance with the Constitutional Provisions.
Proponents of free speech and expression have been vocal about their disappointment in the court’s orders since the judgement was passed. They have emphasised that the judgement is in contravention to one’s freedom of non-expression guaranteed under Article 19. Nationalism should not come at the cost of freedom. In other words, a citizen’s personal sentiments of nationalism and patriotism have no meaning if such a person is left with no choice. Rather, nationalism and liberalism go hand-in-hand. Finally, those against forced patriotism have taken the legal stance that the fundamental duties laid down under Part IVA of the Constitution are not legally enforceable. This has been popularly held in a number of judicial pronouncements. Though these duties lay down a code of behaviour for citizens, historically they have always been regarded as subordinate to fundamental rights.
The view adopted by the court, in Shyam Narayan, implies that any person who fails to pay respect to the national anthem in cinema halls can either be held criminally liable or in contempt of court. As discussed above, the court has justified this move by stating that it will instil a sense of patriotism and nationalism. The primary problem here appears to be that the court has incorrectly placed nationalism and patriotism at an equal pedestal. Though the two words are often used interchangeably, they have distinct underlying meanings. Broadly, both nationalism and patriotism describe one’s sentiments towards their nation. However, nationalism carries within it the notion of unity, brotherhood and oneness, despite the differences. It usually finds its roots in some commonality such as common language, shared history, etc. that acts as the binding factor. Patriotism, on the other hand, is a much more personal sentiment emphasising one’s values and beliefs. In equating the two, the court has confused standing up for the national anthem as a mark of one’s patriotism. Symbols such as the national anthem and the national flag are symbolic of a nation and though respecting them might be a fundamental duty, one’s conduct at the cinema halls cannot be the depiction of such respect. Forcing this upon citizens is in no way the solution, as patriotism cannot come at the cost of one’s freedom of expression.
The right to freedom of expression is a not just a fundamental right under the Constitution of India. It has been recognised as a basic human right by the international human rights framework. The right to expression has been incorporated under the Universal Declaration of Human Rights (Article 19) as well as the International Covenant on Civil and Political Rights (Article 19). Almost all the regional human rights charters across the world cover within their ambit human being’s freedom to express their opinion. Shyam Narayan goes against this recognised freedom of human beings. In forcing its citizens to express their patriotism, the apex court’s order violates the most basic freedoms that form the pillars of modern-day democracy.
After widespread criticism from the public, advocates and human rights activists, the Supreme Court, in 2018, clarified its stance in an order. The apex court held that it shall not be mandatory for cinema halls to play the national anthem before screening the movie. After several instances of manhandling and chaos at cinema halls pertaining to the issue of the national anthem were reported, the Supreme Court, in December 2016, rejected a similar plea calling it to be a bit of an ‘overstretch’.
Even after 2018, the national anthem has continued to play in theatres across the country before the screening of movies. However, as per the current legal position, it is neither mandatory nor would it invite any legal action. That being said, the Shyam Narayan case marks an important turning point in the jurisprudence of Article 19 of the Indian Constitution. An order hampering the freedom of citizens by the top court of the country raises problematic questions regarding imposed patriotism and enforced nationalism. The sheer neglect of precedents placed the citizens’ fundamental rights in jeopardy. This shows the illegality of the interim order passed by the apex court by disregarding its own rulings. Moreover, the court’s understanding of constitutional patriotism rests on the assumption that patriotism is matter of the public sphere. Such an interpretation is likely to go against important individual freedoms that form the backbone of the Constitution.
Though the debate has been currently put to rest, yet the divided views on the court’s move are likely to refuel the discussion in the near future. In order to avoid unintentional violations of fundamental rights, it is extremely crucial that the court provides clarity on the balance between constitutional patriotism, fundamental rights and fundamental duties. Moreover, attention has to be paid to not pass hurried interim orders that violate the fundamental rights of citizens without reflecting on the precedents or having prolonged discussions on the matter. The Shyam Narayan order is an example of how constitutional provisions can be misconstrued to hamper the rights of people by those in power. At the same time, the reversed order is also indicative of the power of people and the underlying unity that keeps such misuse in check.
 Shyam Narayan Chouksey v. Union of India, (2017) 1 SCC 421.  Id.  Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615.  Id.  Id.  Excel Wear v. Union of India, 1979 SCR (1) 1009.  Shyam Narayan Chouksey v. Union of India, (2017) 1 SCC 421.  Mohd. Hanif Qureshi v. State of Bihar, AIR 1958 SC 731; AIIMS Students’ Union v. AIIMS, (2002) 1 SCC 428.  Shyam Narayan Chouksey, (2017) 1 SCC 421.  Shyam Narayan Chouksey v. Union of India, (Order Passed on Jan. 9, 2018).  Id.
Title Image Source: EUAFR- European Union Agency for Fundamental Rights
This article has been written by Navneeta Shankar. Navneeta is a fourth year student at Maharashtra National Law University Mumbai.