There is a distinct surge in jingoism and pseudo-patriotism in the air. While on the one hand there are those who want to loudly proclaim their love for the nation, there are corresponding others who thrive in the chaos that ensues their lack of compliance.
In January 2018, India’s Supreme Court ruled the national anthem was not mandatory in cinema halls anymore. The order was passed by a three-judge bench headed by Chief Justice of India (CJI) Dipak Misra and comprising Justices A.M. Khanwilkar and D.Y. Chandrachud during the hearing of a petition seeking provision of punishment for disobeying the national anthem.
Can’t or won’t, does it matter?
It may be recalled that back in October 2017, Misra had said, “People do not need to stand up at a cinema hall to be perceived as patriotic,” adding that it “cannot be assumed that if a person does not stand up for national anthem, then he is less patriotic.” That it is not mandatory for cinema halls to play the national anthem before a movie isn’t of consequence. What is of consequence is the fact that when it plays, you need to stand up for it unless you are infirm or, owing to some reason, unable to stand. Symbolic and pertinent today particularly when viewed against the time during the last government’s regime, in 2013, when Bahujan Samaj Party’s 82-year-old MP Shafiqur Rahman Barq walked out of the Lok Sabha as Vande Mataram was playing, it kicked up a controversy as predictable as the act
itself. That Muslims don’t sing Vande Mataram wasn’t a matter of surprise. That the rest continued to make an issue over it…was!
The act provoked a sharp rebuke from the-then Speaker Meira Kumar and the Bharatiya Janata Party, waiting in the wings, who leapt up to compare his act to the Taliban and flayed him even further. And, Shariqur Rahman Barq seemed to want just that. “Do you know how many ulema have come out in support of me today? I have been receiving calls all morning assuring me of their support. Secularists have called and said they are with me. This is a secular country,” he had said. “We Muslims bow and pray only to Allah. We do not bow down or pray or respect or revere any other God or any other being whatever you may call it…have you heard Vande Mataram? It talks about bowing, revering, praying to the Motherland. I am not going to do that. It goes against the very grain of Islam,” he maintained.
Not an offence!
Now, whether you like it or not, his act does not qualify as an offence under the Prevention of Insults to National Honour Act, 1971 which could have been invoked to pull him up. Barq, who claimed that this act of refusing to sing the Vande Mataram was not the first, is fully aware of the legality of his act. His claim of “genuine and conscientious belief” falls well within the ambit of Article 25 of the Indian Constitution.
For reference, Article 25 (1) reads: Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law — (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.
The Constitution of India protects Barq and all other like-minded Muslims from any legal reprisal or rebuke. That is, till the State decides to make a law, without changing the Constitution’s ‘basic structure’ to regulate “political or other secular activity”, and create a new legislation or adds the singing of Vande Mataram to Prevention of Insults to National Honour Act, 1971.
Barq, like every other sectional leader, draws political mileage out of acts of ‘dissent’ or ‘revolt’ within legal parameters, to support their own motivated agendas. Barq’s need to address the media and ensure his views as well as the ‘correct use of his full name’ exposes an agenda that’s deeper than mere religion. Hate speech works on the same logic. Its proponents bay and bellow in public against their arch foes – whether they’re Muslims or bhaiyyas or Non-Resident Outsiders – before laudatory masses. They even offer juicy bytes by the minute to a hungry-for-dope media which literally eats out of their hands.
Legally, then, Shariqur Rahman Barq was as much in the clean as the Jehovah’s Witnesses’ children expelled from a Kerala school in July 1985 under the instructions of Deputy Inspector of Schools for having refused to sing the national anthem, Jana Gana Mana. In this case, the appellants were three children who belonged to a sect called Jehovah’s Witnesses and “worship only Jehovah – the Creator and none other”. They refused to sing the national anthem because, according to them, it is against the tenets of their religious faith.
A Commission, appointed to enquire and report, maintained that the children were “law abiding”, and showed no disrespect to the national anthem. However, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the appellants from school from July 26, 1985. The Supreme Court had then held that: There is no provision of law which obliges anyone to sing the nation- al anthem nor is it disrespectful to the national anthem if a person who stands up respectfully when the national anthem is sung does not join the singing…Standing up respectfully when the national anthem is sung but not singing oneself clearly does not either prevent the singing of the national anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in S. 3 of the Prevention of Insults to National Honour Act.
It also held that any law which may be made under clauses 2 to 6 of Art.19 to regulate the exercise of the right to the freedoms guaranteed by Art. 19(1) (a) to (e) and (g) must be ‘a law’ having statutory force, and not a mere executive or departmental instructions.
Personal views and reactions irrelevant
In a far-reaching decision, the Supreme Court then laid down that “the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held, it attracts the protection of Art. 25, but subject of course, to the inhibitions contained therein. In the instant case, what the petitioners truly and conscientiously believe is not in doubt. They do not hold their beliefs idly and their conduct is not the outcome of any perversity. The petitioners have not asserted those beliefs for the first time or out of any unpatriotic sentiment. Jehovah’s Witnesses, as they call themselves, appear to have always expressed and stood up for such beliefs, all the world over.”
So, with Barq insisting “it wasn’t the first time” that he had been objecting to singing the Vande Mataram, he was bang on track…legally within the ambit of the law affecting religion.
With the most recent Supreme Court views on the issue made earlier this year, the law on it remains silent because the State has remained silent. That said, it needs to devise ways to stop the mileage being drawn in the name of religion, particularly from such incidents. Probably an astutely-drafted legislation preventing acts likely to incite violence on religious grounds/or communal reasons, could be in order. But then, whichever government initiates a law like that will need to be free of political agendas of appeasement, or will only be shooting itself in the foot.
Till then, it probably rests on the judiciary to be creative and evolve the principle by creating a framework with supportive judgments. The media, on its part, has been busy trying to milk controversy, as usual!
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Gajanan Khergamker
Gajanan Khergamker is an independent Editor, Solicitor and Film-maker. He is the founder of the International Think Tank DraftCraft.[/column]