Abstract
The student who is being prosecuted for not standing up for the Indian national anthem talks to
“It’s a serious blow to my basic civil rights,” Manohar told Index. “My mother and I were merely sitting down when the anthem was being played. We didn’t stop anybody from singing it, nor did we in any way disrespect the anthem.”
Manohar’s apparent act of disobedience, though, piqued a small minority of fellow cinema-goers, who called the police. Manohar, her mother and Bejon K David, 21, a recent graduate, who had also refused to stand up for the anthem, were summoned to a police station, and a case was initiated against them under the 1971 Prevention of Insults to National Honour Act.
David, a resident of Kottayam, Kerala, had gone to Chennai to watch films at the festival. “The cops were a bit perplexed on how to deal with the situation,” he told Index. “They weren’t sure that a failure to stand up for the anthem was a crime, but they were ultimately convinced that if the Supreme Court mandated it then it must be a wrong for which we must be punished.”
Section three of the 1971 legislation states that whoever intentionally prevents the singing of the national anthem or disturbs such singing by any assembly shall be punished with imprisonment for up to three years. The law, however, doesn’t penalise a failure to stand up when the anthem is played. This diktat, which is new, flows from the Supreme Court’s order, which legal experts say is a form of judicial censorship. The court’s decision also comes at a time when the Indian government is just as concerned with enforcing perceived nationalistic values, often with little concern for the right to freedom of expression.
Students salute the national flag during celebrations to mark Republic Day in Hyderabad on 26 January 2017
CREDIT: Noah Seelam/Getty
In India, the right to free speech and expression is guaranteed by a clause in the constitution. Another clause, however, permits the state to make “reasonable restrictions” on the right to free speech in the interests of, among other things, morality, sovereignty and integrity of the state, public order and friendly relations with foreign states. It is this limiting clause that is often used to justify restraints on speech. But these restraints should be by way of laws made by the state, not judicial decrees, in order for them to be enforceable.
“Judicial orders are not ‘law’,” Gautam Bhatia, a lawyer and author of a seminal book on free speech in India, told Index. “Freedom of speech can only be restricted by law made by the state.” The Supreme Court’s order, Bhatia added, exemplified a trend, where the court encourages pleas from motley groups of petitioners aimed at securing directions to enforce patriotism. “Instead of dismissing the petition on the ground that this is parliament’s job, the court hears it and decides to censor speech of its own accord,” Bhatia said.
Threats to free speech in India are nothing new. But judicially-enforced censorship, in a debate that is increasingly framed in nationalistic terms, appears to be a recent development.
“It is an outcome of the nationalistic politics pursued by the government,” journalist Salil Tripathi told Index. “The Supreme Court order gives the emotion a sanctity.” Recently a lecture by India’s finance minister Arun Jaitley suggested “reasonable” restrictions on free speech in the national interest should be allowed.
This trend is one that Manohar and David believe must be fought. In their conversations with Index, they were clear that they respected the national anthem; indeed, they felt pride in singing it. But the court forcing them to stand up for it struck at the core of their foundational liberties.
“My decision not to stand is part of a principled position,” Manohar said. “I am completely opposed to the ruling. It’s not that I don’t otherwise stand up for the anthem, but to tell us that we must stand up for it to show our respect for it is simply wrong. The court can’t force-feed patriotism. What’s also worrying is that the order comes at a time when the ruling BJP government is already taking many steps to curb our free speech.”
Manohar was hinting at the government’s wider efforts to suppress civil society movements. One of these moves has involved the cancellation of licences to about 10,000 non-governmental groups, under the Foreign Contributions Regulation Act. The law makes it mandatory for non-governmental organisations that seek foreign donations to register themselves, and it bans the use of such funds for “activities detrimental to the national interest”.
“The large-scale cancellation of licences is only cover to target specific organisations which do not share the present regime’s world view,” Alok Prassana Kumar, a lawyer and policy expert, told Index. “The message is very clear: no dissenting voices of any consequence will be allowed.”
While the order mandating respect for the national anthem can seem trivial in comparison with the government’s decision to cancel licences of NGOs that act against apparent “national interest”, the actions share a common thread in that they seek to enforce the state’s own vision of nationalism. In the novelist Nilanjana Roy’s words, we are at an important juncture in India’s democracy, where there exists a serious clash of values between the rights that the constitution provides and the notions of patriotism that the state is seeking to enforce by fiat.
“There comes a time in most democracies where we start to debate the idea of freedom itself,” Roy told Index. “We have a tradition of questioning in India. We need to garner this in a meaningful way.”
Roy warns that if there is not a stronger movement against state-sanctioned censorship, India “could very quickly have a Turkey-like situation. Or we could even go down the path taken by other south Asian democracies, where disciplined nationalism, even at the cost of liberty, is seen as a virtue.”