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While the Republican National Convention was taking place in Dallas in 1984, one Johnson participated in a demonstration which ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted, “America, the red, white, and blue, we spit on you.” Johnson was charged not with ‘sedition’ but just for the ‘desecration of a venerated object’. The court recognized Johnson’s conduct as ‘symbolic speech’ protected by the freedom of speech and rejected the State’s argument justifying punishment in the name of preserving the flag as a symbol of national unity. U.S. Congress did not agree with Johnson ruling and enacted the Flag Protection Act, 1989 but the Supreme Court   struck it down.

Attaching a peace sign to the flag; refusal to salute the flag; and displaying a red flag were similarly protected. In Smith v. Goguen, wearing pants with small flag sewn into their seat was held as expressive conduct. U.S. Supreme Court held “neither the United States nor any State may require any individual to salute or express favorable attitudes toward the flag.” We should not go this far but can fundamental duties be made justiciable like fundamental rights. Even Indira Gandhi who got these duties inserted in the constitution could not do it and even during emergency succeeded in adding them to Part IV-A of the constitution.

Justice Deepak Mishra through an interim order on playing of national anthem in cinema halls has initiated a new debate. His judgment in M.P. High Court on this very subject was overturned by a three judge bench of the apex court in 2004. Critics have started saying that Supreme Court and High Courts should start their daily hearings with the national anthem. Parliament too must have national anthem daily before it takes up Question Hour. No work should start anywhere without national anthem. In the meanwhile it is hoped that such people who are not able to stand would not be targeted or mocked or their pictures being uploaded by the anthem vigilantes. But the ground situation is entirely different and seven youngsters were recently beaten up in Chennai for not standing up for national anthem at the start of movie. These youngsters were also arrested and subsequently released. It means that ones’ evening may be destroyed by over enthusiastic self-appointed anthem vigilantes. I am sure Hon’ble judges did not intend all this while passing this interim order.

Demanding patriotism from those who have paid for mere entertainment may not be a great idea but then Justice Mishra is unnecessarily criticized for giving an over dose of nationalism. He has specifically used the term ‘constitutional patriotism’(Verfassungspatriotismus). Jurgen Habermas has used this term to promote ‘individual autonomy’ and ‘super-national identity’ and has used it to differentiate from ‘aggressive nationalism’ based on majoritarinism. It is a compromise between dangers of nationalism and ideals of cosmopolitism. It is a much safer example of patriotism to the ethno-cultural experience of Nazi Germany with cultural particularities being duly acknowledged. ‘Patriotism’ differs from ‘nationalism’ in being compatible with universal liberalism and is an antidote to ‘nationalism’. Having talked of ‘constitutional patriotism’, why judges considered individual rights less important is not clear. ‘Constitutional patriotism’ has the potential to reunite India, Pakistan and Bangladesh because for Habermas citizenship does not require that all citizens share the same language or the same religious, ethical or cultural origins.

Hindutva brigade which is in celebration mood may not really agree with the ‘constitutional patriotism.’ In fact under this concept citizens are to be socialized into a common political culture on the basis of liberal constitutional principles such as individual autonomy, critical rationality and diversity where political culture replaces majority culture and rejects radical nationalism, xenophobic ethnocentrism and religious fundamentalism.

Rabindernath Tagore, author of national anthem too did not hesitate in telling Gandhiji that there is a thin line between nationalism and xenophobia and went on to say that to worship my country as God is to  bring curse upon it. Tagore was opposed to the triumph of patriotism over humanity and universalism. He was even for ‘destroying nationalism’ to achieve ‘unity of man’.

The Prevention of Insults to National Honors Act,1971 neither mandates ‘standing’ nor ‘signing’ of national anthem and therefore questions are being raised about unnecessary curtailment of fundamental freedoms without a ‘law’ being  enacted by the Parliament as judicial law making is not covered within the expression ‘law’ under Article 13(3). The Act merely punishes those who intentionally prevent singing or disturb assembly singing the national anthem.

Since it is only an interim order and the Modi government has not yet filed its response, final order may create an exemption for the persons with disability, senior citizens, sick people etc. Locking of doors too needs modification in view of Uphaar tragedy. Even the Home Ministry order on national anthem leaves it to the ‘good sense of the people not to indulge in indiscriminately   singing or playing of national anthem’.

In the national anthem case, three students from Jehovah witness sect were expelled from the school for not singing national anthem. Supreme Court held that these children were exercising their right to silence which is implicit in the freedom of speech. The court said: ‘our tradition teaches tolerance, our constitution preaches tolerance. Let us not dilute it.’ In Whitney v. California, U.S. the court said that we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents. By making compulsory playing or standing of national anthem, are we not diluting the freedoms which our national anthem really represents.