(Subhashree Jena is a fourth year student at Ram Manohar Lohiya National Law University, Lucknow. Swetalana Rout is a fourth year student at Damodaram Sanjivayya National Law University, Visakhapatnam. This is part 1 of a two-part series.)
Featured Artwork: Colored Ideogram by Willi Baumeister
National symbols are worthy of our utmost respect not because they are a mere inert embodiment of rigid principles, but because they offer a hub for diverse factions to express and navigate whatever that unites and represents them. It is in particular because these symbols carry significance, morals, and ethics that these are important spaces for debate and revolution. Deliberations about national symbols become conversations that bring marginalized narratives into mainstream media and discourse. This is what gives national symbols their importance. The recent use and ‘abuse’ of national symbols during anti-CAA and anti-NRC demonstrations have brought forth the current debate. Can the symbols be used to the extent that they are abused? Where is the line that demarcates reverence and liberty from sheer ignominy and derogation of these markers? Also, who decides what this line is going to be? Every generation re-invents and re-imagines what the nation is and how we as citizens should relate to it. This progression is hardly ever simple, but it is essential. This makes some people prickly because, at any scrupulous second, the status quo can feel like the best way to revere; to treat it as sacrosanct. Stability can feel like comfort, and change can seem like a threat. But this is a false dichotomy. A person’s projection of love towards her nation differs from others akin to the existence of a colour spectrum – no one shade is exactly similar to another. Therefore, one kind of projection cannot trump another kind of projection. People need to be tolerant and respect patriotism in all its forms and shades. Radical jingoistic utterances shouldn’t be given a place while discussing about sensitive issues akin to patriotism.
I. REVERENCE FOR NATIONAL SYMBOLS
National attachment, a feeling of close personal attachment to one’s nation or state, is a powerful organizing force that has been a facet of all successful human societies.[i] References to the national attachment as early as 430 BC in Greece indicate that these strong social forces have existed for thousands of years.[ii] There is minimal qualm about the sentimental ties that people possess with their nation and to the national markers that replicate affective ties felt toward one’s kin. They are fast when it comes to morally condemning the cleaning of one’s toilet with a national flag, even if the act is done away from the public eye and, therefore, would be unknown to anyone else. Although people have considerable trouble generating reasons why such an act is ethically reprehensible, they remain steadfast in their conviction that using flags in such a manner is wrong.[iii] People possess strong affective ties to their national flags which is also seen in their strong reactions to flag burning.[iv] They tend to understand that others are likely to be offended by acts such as flag burning[v] and even children as young as six possess the awareness that flag burning is morally wrong, although their symbolic understanding of such transgressions increases with age.
National symbols are not merely projections but a sacred bond. These are the accumulation of hopes and aspirations of the people.[vi] It needs to be borne in mind that India is not only the world’s largest democracy but also the world’s most diverse nation. The national flag, national anthem, and the country’s Constitution are the only secular point of convergence for all the citizens; it is these symbols which helps create the secular melting pot of identities and factions that India is[vii]. The authentic assessment of any country’s democratic integrity is the ability of even an insignificant minority to find its identity under the country’s Constitution.[viii] It is this secular convergence and national attachment that makes people particularly sensitive about the usage and projection of national symbols. This makes one wonder about the extent of freedom of expression against the boundaries traversing beyond which results in derogation of national symbols.
When American rugby player Colin Kaepernick knelt while the American National Anthem was played before a game to protest against the ongoing police brutality in the US gave rise to the same debate and became a national issue, bringing the debate on relation of American citizens with the National and State flags back to life. It also made the citizens and judiciary revisit the decisions in Jonhson and Eichman. The American Supreme Court had already taken the world by storm in its landmark decision of Texas v. Johnson[ix], wherein it highlighted that individuals even have the right to burn the flag as a form of political speech, thereby increasing the realm of liberty of speech and expression by leaps and bounds. Following the Johnson judgement was the United States v Eichman judgement[x] wherein the US Supreme Court struck down the Flag Protection Act of 1989, reaffirming its holding in the Johnson judgment. The US Supreme Court went on to emphasize that the government could not circumvent the First Amendment, which provides the right to freedom of speech and expression, by prohibiting only certain modes of expression, such as flag-burning, as opposed to prohibiting all means of expressing certain messages.
Debate and reinvention are imperative for democracy. The most apt way of admiration of any national symbol is to embrace the moments when it forces us to re-assess the meaning of being a true Indian.
II. THE JUDICIAL TRAJECTORY IN INDIA:
The judicial approach towards projection and use of national symbols and emblems has transcended from being liberal to constrict. In the landmark judgment of Bijoe Emmanuel[xi] the court held that the order for expelling three students who didn’t sing the National Anthem violated the fundamental rights of the students under Articles 19(1)(a) and 25(1), who, “because of their conscientiously held religious faith” do not join the singing of the National Anthem. The action taken against them “is a violation of the fundamental right to freedom of conscience and freedom to profess, practices and propagate religion”. The court said that the real test of true democracy was the ability of even an insignificant minority to find its identity under the country’s Constitution.[xii] When the Apex court made it mandatory to stand for the National Anthem in cinema halls[xiii], it cited Article 51(A)(a) of the Constitution, dealing with Fundamental Duties, according to which it’s the utmost duty of every Indian to abide by the Constitution and respect its ideals and institutions, the national flag and the National Anthem[xiv]. It is the solemn obligation of all the citizens of India to abide by the ideals en-grafted in the Constitution — and one such ideal being to be respectful for the National Anthem and the national flag. Any other notion or the perception of individual rights vis-a-vis these symbols is constitutionally impermissible.”[xv] However this order of the Hon’ble Supreme Court drew much criticism, especially by persons with physical disabilities. Hence In lieu of the same the Court passed its final order 18th April 2017 wherein it exempted the persons falling in the categories below from standing up while the National Anthem is played in cinema halls[xvi]:
- Wheel chair users – can be cerebral palsy, Parkinson’s disease, muscle dystrophy, multiple sclerosis or other conditions
- Those with autism
- Those with cerebral palsy
- Intellectual disabilities
- Mental illness
- Deaf-blind
- Multiple disabilities
- Parkinson’s , multiple sclerolsis
- Leprosy cured
- Muscular dystrophy
Whereas other able-bodies persons have to mandatorily stand for showing respect for the National Anthem.
Sports persons were banned from displaying the flag on their equipment in 2005, which meant cricketers couldn’t sport the tricolor on their helmet or gloves. The Home Ministry enforced the ban citing the Flag Code of India according to which the tricolor should not be used on costumes. [xvii]Sunil Dutt, the sports minister, had said, ‘I personally feel cricketers should use the tricolor. It acts as a morale-booster. But I have to follow orders.’ Many athletes, including Yuvraj Singh and Narain Karthikeyan, had been vocal in protest. The flag was absent from helmets for a while, but then came back as Sachin Tendulkar moved the tricolor above the BCCI logo (it used to be below it earlier), a model followed by several cricketers today. But what about an athlete whose uniform has only so much room to display his national pride? When Vijender Singh wore shorts with a tricolor on the sides during the WBO Asia Pacific Super Middleweight title a complaint was filed against him in Delhi for ‘disrespecting’ the flag.[xviii] The Central Government had eased some of the restrictions provided in the Prevention of Insults to National Honour Act (1971), allowing sports persons to sport the flag above the belt, so that it doesn’t dishonor the flag. However, for sport persons like boxers, swimmers, it would still be difficult to sport the national flag on their jersey.
Before the judgment of Union of India v. Naveen Jindal[xix] citizens were not allowed to display the tricolor in their private capacity. The prohibition was to such an extent that even unfurling the flag and putting it up as an exhibition of one’s devotion for the nation was no justification. On specials occasions, however, such as Independence Day or on other national holidays, an exception was made. In this case, the Apex Court held that the right to put up the flag for displaying one’s patriotism for the nation is a fundamental right. This right can be permitted so long as it expresses love and affection for the nation but it cannot be permitted if it results in dishonor of the national flag. It cannot be used for commercial purposes or other purposes. Hence, there exists no straitjacket formula for differentiating between using national symbols fruitfully against derogating them and the multitude of judicial orders do little to help. Indeed, the determination of the right of speech and expression concerning national symbols is a slippery slope that is dangerous to tread.
The Constitution provides us with the freedom of speech and expression but the right is subject to reasonable restrictions. It will not be completely out of place to quote Gandhi while estimating the quantum of emotions associated with national symbols and emblems. A flag is a necessity for all nations. Millions have died for it. It is no doubt a kind of idolatry which would be a sin to destroy.[xx] The corrosive attitude regarding the honor of the national sentiment is impermissible.[xxi] Indeed our law requires indispensable compliance of National Codes meant for the respect of these symbols but the keyword to be emphasized here is “intentionally”.[xxii] If there is no intention to disrespect the symbol, people shouldn’t be automatically held liable for penal discourse merely because someone else found their innocent display of national pride and attachment to be blasphemous. One can’t be sensitive while judging what patriotism, respect for national symbols and its projection means for another individual. The scale has to be one used by a rational being with competence similar to that of any ordinary man.
In this part the authors have presented the psychology that is involved in a person’s veneration for his nation and national symbols and how the law has evolved to cater to these bearings. We have also analysed the jurisprudence involved in balancing this duty to respect with respect to an individual’s right to freedom of speech in and expression. In the next part the authors dealt in extensively with the above mentioned balancing in various regimes of the world, including India.
[i] Feshbach & Sakano, ‘Neurological basis of social attachment’ (1997) 154(6) American J Psychiatry 730.
[ii] David A. Butz, ‘National symbols as agents of psychological and social change’(2009) 30(5) Political Psychology 802.
[iii] Ibid.
[iv] C.C. Helwig & Prencipe, ‘Children’s judgment of flags and flag burning’ (1999) 70(1) Child Development .137
[v] Elliot Turiel, The Development Of Social Knowledge: Morality And Convention (Cambridge University Press, 1983).
[vi] R Firth, Symbols Public and Private (George Allen and Unwin, London, 1973)361.
[vii] Bijoe Emmanuel & Others v. State of Kerala AIR 1987 SC 748.
[viii] Ibid.
[ix] Texas v. Johnson 491 U.S. 397 (1989).
[x] 496 U.S. 310 (1990)
[xi] Bijoe Emmanuel & Others v. State of Kerala AIR 1987 SC 748.
[xii] Ibid.
[xiii] Financial Express Online ‘Why Supreme Court made National Anthem mandatory in cinema halls?’ (Financial Express, 1st Dec 2016) < https://www.financialexpress.com/india-news/why-supreme-court-made-national-anthem-mandatory-in-cinema-halls-read-full-text-of-order/461025/> accessed 29 September 2020.
[xiv] Shyam Narayan Chouksey v Union of India Writ Petition (civil) No 855/2016
[xv] Bijoe Emmanuel & Others v. State of Kerala AIR 1987 SC 748
[xvi] https://www.mha.gov.in/sites/default/files/Anthem12.5.2017English_01062017_0.pdf
[xvii] Sharda Ugra ‘Sticking Indian flag on helmets not allowed, govt tells cricketers’ (India Today, 7th March 2005) < https://www.indiatoday.in/magazine/sport/story/20050307-sticking-indian-flag-on-helmets-not-allowed-govt-tells-cricketers-788224-2005-03-07> accessed 1st October 2020.
[xviii] Niharika Pal, ‘When celebrities got into trouble for ‘insulting’ the tricolor of India’ (Times of India, 28 January 2017)<https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/Whats-wrong-withpatriotic-PDA/articleshow/53652839.cms> accessed 10 April 2020.
[xix] Union of India v. Naveen Jindal (2004) 2 SCC 510.
[xx] D.G Tendulkar, Mahatma Volume 2: Life Of Mohandas Karamchand Gandhi (Publications Division, Ministry of Information and Broadcasting, Government of India, 1961)21.
[xxi] Shyam Narayan Chouksey v. Union Of India AIR 2003 MP 233.
[xxii] Prevention of Insults to National Honour Act 1971, s. 2(1).
Leave a Reply