(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 2 of a two-part series.)
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In the previous post, the authors had analysed how there has been an attempt at balancing an individual’s duty to protect and respect national symbols like the flag, anthems, etc with respect to an individual’s right to freedom of speech and expression. In this post we will be delving in deeper into the jurisprudence evolved around the subject-matter, the position in India and the way ahead.
III. THE EXTENT OF USING THE NATIONAL SYMBOLS, FREEDOM OF EXPRESSION AND A GLOBAL PERSPECTIVE:
When domestic judgments and laws fail to answer, one could look beyond the domestic frontiers and seek inspiration from other legal systems. While Brazil, Canada, and Malaysia permit the usage of their flags by citizens privately, this is strictly prohibited in Japan and Egypt.[i] The most liberal state which permits the unhindered use of flags is the US. Following the case of Texas v. Johnson[ii], which declared that even the immolation and desecration of the national flag is an act protected under the right to freedom of expression,following which there were several amendments in the “State flag statutes” of several American states.
However, does this belongingness give a person an absolute right to employ these symbols in any manner possible? The US Courts have shown complete support for the First Amendment rights of the citizens to burn or revere the flag as a form of dissent towards the government. Banning flag desecration or making it an offense has been argued as unjust since it is an action against people for expressing their opinions or ideas freely.[iii] In addition to that, the very fact that citizens have stooped down to such a level that they start dishonoring flags implies that there is great dissatisfaction with the ruling government and the ban on expressing such thoughts is contrary to the idea of democracy. On the other hand, conservative communities argue that burning or tearing the national flag amounts to disrespecting national pride and honor.
Therefore, there exists no universal threshold that can help regulate the degree of liberty that citizens can exercise regarding their national flags across the globe. While some countries impose severe restrictions, others give unhindered freedom concerning the use of their flags. The foreseeable problem with liberalizing the rules is that there would be a need for greater civic awareness, enforcement of correct usage and regulation of commercial exploitation. One of the possible solutions for ensuring respect for the flag and other national symbols is to incorporate the importance and necessity within the academic syllabus in India, instead of trying to force or guilt people into doing the same. Evoking genuine reverence and for the country is the goal sought for.
IV. DRAWING THE LINE:
The events about the CAA-NRC debacle have opened the much dreaded Pandora’s Box – can national symbols be used in whatsoever manner possible during protests? These symbols are unanimously considered a virtue; hence the use of national symbols as an emblem of solidarity is understandable. What’s interesting is how sharply divided or rather hypocritical are those who proudly claim the title of using them with the utmost respect, on practical issues. A common phenomenon observed after public rallies and protests alike are the soiling and destruction of flags. Thousands of people would be trampling the cloth which stands for the whole nation’s honor and glory.[iv] Another act that seems to be in vogue when it comes to protests is tearing the Constitution. Recently, registering their protest against the scrapping of Article 370, PDP MPs Mir Fayaz and Nazir Ahmed Laway tore up the Constitution in the Rajya Sabha, leading to their ouster from the Upper House.[v]
While a certain faction calls such actions as the manifestation of true liberty, it is nothing more than sheer ignominy. A national flag is the most solemn symbol of a country. Be it a Head of the State, King or peasant; everyone salutes it. As we confront crucial challenges to our security, our unity, and integrity, we cannot but heed to the call of this flag to rededicate ourselves to the establishment of that peaceful and just order wherein all Indians irrespective of creed, caste or sex will fulfill themselves.[vi]
Indeed using national symbols during protests is also a way of showing one’s belongingness and unity with the nation and its founding values with no ulterior propaganda. For instance[vii], Indian Muslims protest against the Citizenship Amendment Act which they say is discriminatory by carrying national flags and copies of the constitution, aiming to prevent supporters of the Hindu nationalist government from painting them as anti-India.[viii] They also sing national songs, read out sections of the constitution and carry pictures of independence hero Mahatma Gandhi and B.R. Ambedkar, who led the drafting of the constitution. Such an action can be considered to be within the realm of reasonable freedom of speech and action, a demonstration against the supposed fascism of the government.
V. ENFORCED PATRIOTISM VS. LIBERAL PATRIOTISM:
Another narrative that needs to be kept in mind before passing any value judgment on the issue is the narrative wherein patriotism is pitched against liberal values concerning these symbols and emblems. If one argues in favor of enforced patriotism, one can say that the collective expression of one’s sentiments can play a significant role in attaining social and political coherence. To maintain the continuity of such expression, enforcement needs to be done by the legitimate state. To argue further, India is a land of diversity with respect to language, religion, ethnicity, topography and is always under constant fear from divisive and separatist tendencies. This necessitates the need for enforced patriotic acts for the political enjoinment of the diverse Indian society.
Further, citizens have to realize that an individual’s rights are protected if a State exists. Building and establishing a State requires maintaining a stable State and this can be done if citizens forego a part of their freedom and display the respect towards national symbols in a collective environment. In the American constitution, it is described as the ‘third generation’ rights. The government can act positively or negatively, which includes acting on the behalf of or prohibiting the citizens from acting.[ix]Article 51A(a) of the Constitution of India[x] prescribes that showing respect towards the National Flag and the National Anthem is a fundamental duty of citizens. The recent pronouncements of the judiciary provide substance to this Constitutional directive.[xi]
The Indian State is democratic,in a functioning and vibrant democracy like ours, fundamental rights take high precedence. As per Article 19(1)(a), all citizens shall have the right to freedom of speech and expression. In various cases, the apex court pronounced that freedom of expression includes the freedom of non-expression also.[xii] One should not be forced into irrational acts instead of jingoism masked in the garb of patriotism. Hence, the enforced acts of patriotism which turn into fanatical extremes are antithetical to the democratic spirit of the constitution itself.
Nationalism without liberalism is a monster. There are high chances that patriotic feelings and respect towards national symbols and institutions are strengthened, not when they are kept aloof, but when they are in reach and accessible to the common man. For instance, after the lifting of restriction contained in the Flag Code of India relating to the flying of the National Flag by private citizens by the Supreme Court in the Naveen Jindalcase[xiii] in 1995, more and more people have become endeared themselves to the tricolor.
Most importantly, keeping both patriotism and nationalism is what gives rise to problems. Though both are used to show the relationship that a citizen has with his or her country, the terms are as similar as chalk and cheese. On one hand, nationalism gives more importance to unity by way of cultural background, language and heritage, patriotism on the other pertains to love for the nation with greater emphasis on value systems and beliefs. And, fundamentally, a patriot expresses the emotion of love towards his country passively, while a nationalist expresses his love or concern for the country in an active political way.
Political thinker Stephen Nathanson says that a patriot has ‘special affection for own country’, ‘a sense of personal identification with [it], ‘special concern for [its] well-being’ and ‘willingness to sacrifice to promote [its] good’[xiv]. Philosopher Simon Keller adds to this, “To be a patriot is to have a serious loyalty to country, one that is not characterized by the phenomenology of choice, is essentially grounded in the country’s being yours, and involves reference to what are taken to be valuable defining qualities of the country.”[xv]Nevertheless, it needs to be understood that devotion has its limits and that there is no dictum differentiating one kind of patriotism from others, i.e the concept of ‘true patriotism’ and ‘false patriotism’ is a crude dichotomy. Patriotism holds a particular meaning for everyone and which won’t necessarily be similar to those around him/her. Passionate rhetoric can’t be used to demean others’ conceptualization of allegiance to their nation. Even debates which turn spiteful and fanatic are of little utility.
Everyone needs to be more accepting of the spectral array of versions of patriotisms that exist in the minds of people.We ought to discuss which one (if any) is practically the most useful, rather than the true one. One must accept that there are various ways of being patriotic and equally numerous ways of protesting and feeling affiliated with the nation and its tokens. Proper decision making, however, requires avoiding the inclusion of patriotism in both policymaking and passing judicial pronouncements. Emotionally charged jingoism is highly problematic, inspiring feud and tension. There are instances where patriotism inspires collectivistic projects essential for the development of the entire community. Nevertheless,the fact that consequences can be equally good or bad makes it important to be vigilant and scrupulous in each case. Whatsoever action is chosen to be done, it should be socially and ethically justifiable whenever the need arises, even if no reason or justification is owed. This will help others choose an appropriate response. The reason why governments and self-proclaimed vigilantes ought not to censure minority’s supposed “anti-patriotic” opinion is that the actions of such minorities neither harm anyone, at least in the legal and narrow sense nor when viewed rationally fall in the ambit of disrespect or sedition. More importantly, dialogue and free speech need to be valued at such times.
VI. THE WAY FORWARD:
In a pluralist, a democratic, secular country like India finding the middle ground is an order of the day. What makes national symbols relevant is any person’s ability to project them to showcase her feelings. However, this doesn’t give anyone the license to denigrate these symbols to show their protest or contempt towards the government or its policies.The Indian Constitution itself heralds an individual’s right to express herself as a part of her core identity. As varied one individual is from another, so is her idea and means of freedom of expression. While it will be abhorrent to curb or confine this right into a straitjacket formula, it is also important that there is a threshold in place to differentiate reverence from scorn. We can’t and shouldn’t allow self-styled policemen of patriotism patrol our social media posts and navigate the imagined interiors of our minds to see if we pass or fail tests set by them.
[i]Union of India v. Naveen Jindal (2004) 2 SCC 510.
[ii]Texas v. Johnson491 U.S. 397 (1989).
[iii]Halter v. Nebraska 205 U.S. 34.
[iv]Lt. Cdr. K.V. Singh, Our National Flag (Publications Division,2018) 17.
[v]Vijaita Singh ‘People in Valley demand restoration of Article 370 and J&K statehood: Nazir Ahmad Laway’ (The Hindu, August 4 2020) <https://www.thehindu.com/news/national/people-in-valley-demand-restoration-of-article-370-and-jk-statehood-nazir-ahmad-laway/article32269990.ece> accessed 30th September 2020
[vi]Ibid.
[vii] Aftab Ahmed and Nivedita Chaterjee, ‘Indian Muslims wave national flag to show protest is no Anti-India’ (Reuters, 23 December 2019) <https://www.reuters.com/article/us-india-citizenship-nationalism/indian-muslims-wave-national-flag-to-show-protest-is-not-anti-india-idUSKBN1YR18C> accessed 10 April 2020.
[viii] Apurva Vishwanath , Kaunain Sheriff M, ‘Explained: What CAA + NRC means to you’ (The Indian Express, 25th December 2019)<https://indianexpress.com/article/explained/explained-citizenship-amendment-act-nrc-caa-means-6180033/ accessed>accessed 5thSeptember 2020.
[ix]Christine Simeone, ‘The Necessity and Possibilities of Constitutional Environmental Rights’ (Master of Environmental Studies Capstone Project, 25thAugust 2006) accessed 5th September 2020.
[x]The Constitution of India1950, art. 51(A)(a).
[xi] Shravan Nune, ‘Debate on (En)Forced Patriotism in Indian Society’ (Jagranjosh, 27 July 2017)<https://www.jagranjosh.com/current-affairs/debate-on-enforced-patriotism-in-indian-society-1501140799-1> accessed 10 April 2020.
[xii]Simon Keller, ‘Patriotism As Bad Faith’ (2005) 115(3) Ethics 34.
[xiii]Union of India v. Naveen Jindal (2004) 2 SCC 510.
[xiv]StephenNathanson, Patriotism, Morality and Peace(Rowman& Littlefield Publishers, 1st edn.,1993)34-35.
[xv]Keller & Simon, The Limits Of Loyalty (Cambridge University Press, 1stedn., 2007)70.
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