When a country emerges from the shackles of domination, the constitutional model formed is not a mere tool for governance, but also espouses certain essential libertarian values. The history that unified a nation is inevitably represented through its national symbols. Article 19 of the Constitution, which provides the Freedom of Speech and Expression is an accurate depiction of these sentiments. ‘Expression’ is taken to have a broader connotation, and encapsulates the freedom to hold and spread ideas or opinions. This right however, is not absolute. In the context of this discussion, it can be juxtaposed with Part IVA of the Constitution (specifically, entries ‘a’ and ‘b’) which captures the duty to respect the Flag and the Anthem and cherish the ideals of our struggle for independence. In this article, the author seeks to explore the growing judicial and political narrative surrounding the regulation of a citizen’s expressions of patriotism, and establish an argument for reconciling rights and duties in favour of providing an individual with the leg-room to decide how they wish to express respect towards their country.
The Rise of Aggressive Symbolic Nationalism
In India, the symbolic nationalism surrounding the Anthem and the Flag has been a core controversy. The rigid argumentation, often provided by die-hard “patriots” and increasingly, state bodies, is that these symbols espouse the idea of India and the values it holds dear. They reflect the struggles of our forefathers and the loyalty they held to their nation.
“To worship my country as a god is to bring curse upon it.” The words of Rabindranath Tagore and his ideas in several works echoes the existence of a nuanced understanding of patriotism, since the inception of Independent India. It was believed that if our opinions were forcefully homogenized and the freedom of the ‘mind’ was impeded by being bonded to nationalistic sympathies, it would destroy any semblance of individual dignity and unity in diversity. In his astute opinion, love for ’one’s country cannot superimpose on basic humanity.
Our national symbols, which hold such immense meaning, cannot and should not be disrespected. This sentiment seems simple enough, but has now evolved into a jingoistic sense of patriotism. In this context, it is important to consider the appropriate legislative provisions enacted by the Centre, namely, the Prevention of Insults to National Honour Act, 1971 (‘the Act’) and the Flag Code of India, 2002. It is important to consider how the provisions of these legislations undermine the ethos of the right to freedom of expression and opinion.
Section 3 of the former deals with insults to the National Anthem, and punishes any refusal of its singing. At first glance, this provision seems largely reasonable as it does not impose any rigid obligations, but only the duty not to impede another’s expression of patriotism via the Anthem. However, an order of the Supreme Court in 2016 undermines this meaning. This order made it mandatory for cinema halls to play the National Anthem before the feature presentation, and for cinemagoers to stand in respect of it. The order was later modified in 2017, empowering the Government to define laws which regulate the playing of the Anthem. However, by then a great degree of turmoil had been set in motion.
Across the country, there were incidents of people being booked and heckled for not standing during the Anthem in theatres. This was taken to the extreme, when a wheel-chair bound individual was publicly berated for not being able to stand. Evidently, these instances, and the court’s order itself represent an extreme interpretation of the Act, by randomly booking people for the so-called insult of the nation. This Order has been subject to vehement criticism. Pratap Banu Mehta wrote very aptly that in a liberal society, what is desirable cannot always be made compulsory. The Supreme Court seems to be perpetuating the aggressive notion of “constitutional patriotism” which seeks to forcibly instill nationalism in individuals. Legislative intent, was always to prevent the dishonour of the flag, and not impose obligations under the garb of patriotism.
On similar lines the Act and the Flag Code also enumerate the duty not to disrespect the National Flag. However, unlike the aforementioned provision, Section 2 of the Act is far more aggressive as it outrightly precludes any public burning, mutilating, defacement, defilement, disfiguration, destruction or disrespect to the Flag. This idea is deeply problematic because an intention to dishonour the nation is not an automatic implication of flag desecration. National symbols play a key role in protests, which operate around symbolic templates. The use of these symbols as signs of protest serves an important democratic function, by integrating the protestors under a nationalistic banner. This counters the popular, unitary notion of ‘national identity’ which is misdirected towards and appropriated by those in power. By using these symbols, protestors show that the change or revolution they envision is in tandem with their love for their country.
Even if these draconian regulations are accepted, precedent shows that the interpretation and regulation of patriotic identity has been arbitrary. Public figures have often been booked, rebuked or “trolled” for mere faux pas, be it by accidentally holding the flag upside down, choice of wardrobe, positioning etc. as a grave violation of their duty to honour the nation. A bare reading of both the Act and the Flag Code reveals however, that a key factor that determines such culpability is “intention.” Recent practices of the media and state instrumentalities, reflect an extreme understanding of all these provisions. From a human rights perspective, it is important to take into account these provisions in the context of their democratic criticisms and analyse the nexus between rights and so-called patriotic duties.
Reconciling Rights and Duties
Considering the conflict between our freedom to express and not to express under Article 19, and our fundamental duty to respect national symbols, there is a need to interpret the two harmoniously. Granted, that Article 51A, enshrining these duties is a non-justiciable part of the Constitution. However, the rights under Article 19 are also limited by “reasonable restrictions.” The enactment of legislation in furtherance of fundamental duties comprises such a limitation.
Precedent indicates, that reconciliation is indeed possible. In the landmark Bijoe Emmanel case of 1986, the Supreme Court attempted to balance Article 51A with Article 19. When school children belonging to the Jehovah-Witness community refused to sing the anthem (as they do not pledge allegiance to any nation), they were expelled for ‘unpatriotic’ activities. This expulsion was rightfully held to be unconstitutional, finding that not singing the National Anthem is not a marker of disrespect. The court distinguished between the duty not to disrespect and the liberty to actively respect or remain silent. Thus, the tendency is to favour rights over duties.
Where comprehensive reconciliation can be attempted, is at the meaning of the term “respect” when it comes to national symbols. Regulating “respect” creates a circular dilemma as imposing it undermines any possibility of genuine respect. Choice plays a very important role in the distinction between respect and merely eliciting some performance.
Further, respect is necessarily subjective. One’s feeling of respect for one’s country is not always associated with their conduct around national symbols. Not standing for the Anthem does not imply disrespect, and neither does kneeling. Similarly, using the flag in whatever way as a symbol of protest is not tantamount to dishonoring one’s nation. All these actions are constitutionally protected by the right to free speech and expression. As Justice Scalia opined, flag desecration might be awful, but it is not unlawful. A Flag or an Anthem is representative of the values a country holds dear, especially when it has emerged from colonization. It is a symbol of strife and social change.
The over imposition of restrictions and policing of patriotic sentiments, not only goes against the ethos of human rights to freedom of expression within the country, but also abridges international human rights obligations. Article 19 of the Universal Declaration of Human Rights gives every person the same right to freedom of opinion and expression. In a similar vein, Article 19 of the International Convention on Civil and Political Rights also espouses a similar right to hold opinions and express them, unimpeded except pursuant to national security, health or another’s reputation. These rights provide individuals with a protected space to develop their own personal doctrines, so long as it does not cause harm. Even the limited restrictions thar are imposed are envisioned as certain responsibilities that come with freedom, and are operable in a manner that would not jeopardize the right itself. The nexus between these national and international provisions, envisions a guarantee of individual liberty, which must necessarily include the liberty to decide what patriotism entails for them. The imposition of a unified tokenistic idea of aggressive nationalism pierces the core of these protections.
Therefore, while there may exist certain ideals requiring one not to disrespect national symbols, the active policing of patriotism and imposition of rules that aim to envisage such respect is unconstitutional and violative of human rights.
Neither the National flag, nor the Anthem have ever reflected a monolithic idea of patriotism. In fact, the central theme in all our symbols, seems to be the idea of socio-religious amalgamation and “unity in diversity.” Post-independence, these understandings seem to have faded away into a monopolistic interpretation of what it means to respect national symbols. Masquerading as some sort of constitutional patriotism, this has often cast doubts on expressions of reverence. National symbols as the culmination of anti-colonial struggles and democratic values have an associated duty to respect them. However, what this respect entails is subjective and cannot be state-policed. Even if a free speech regime cannot have blanket application, the only regulation permissible, is perhaps punishment for intentionally and actively disrupting patriotic gatherings using these symbols. The truth is, that the very value held by these emblems makes them potent symbols of protest and integration of dissent. Thus, any regulation imposing monolithic notions of respect and disrespect to ’one’s country cannot be constitutional. The rights in Part III have always occupied a paramount position. Placing such pseudo-nationalistic ideas over these rights under the pretext of a so-called Constitutional Patriotism is untenable and violates the very values our institutions are scrambling to protect.
 Durga Das Basu, Commentary on the Constitution of India (LexisNexis).
Title Image Source: Beacon Broadside
This article has been written by Deeksha Balaji Vishwanathan. She is a second year law student from the National University of Juridical Sciences, Kolkata.