National Anthem U-Turn: SC’s Mood Swings Are As Unpredictable As Weather

On some hot-button issues, the Supreme Court does not seem to know whether it is coming or going. While it is well-established that the highest court is not above contradicting itself in different judgements (read Arun Shourie’s 2001 book on Courts and their Judgments for proof), few would have believed that it can be so contrary-minded in a matter of months.

Recent instances include the Supreme Court decision to modify its own ban on highway liquor vending, which drove several states to denotify highways to preserve liquor revenues, and the recent ban on cracker sales in the national capital region during Diwali barely weeks after relaxing it on 12 September.

The latest example of this contrary-mindedness came yesterday (23 October), when a bench headed by the Chief Justice Dipak Misra indicated that it may revise the court’s order last year to make the playing of the national anthem in cinema halls mandatory.

The three-judge bench, on which Justice D Y Chandrachud appears to have been most voluble, asked: "Why do we have to wear patriotism on our sleeves? People go to (the) cinema for undiluted entertainment and to ease out. Tomorrow someone may say people should not come in shorts and T-shirts in cinema halls as the national anthem is played there. Where then do we draw the line? Where (will) this moral policing would stop?”

He’s right. But maybe the question ought not to have been posed to the government, but to his judicial boss, Chief Justice Dipak Misra, who instituted the compulsion last November-December. Hindustan Times attributed this statement to him then: “These days, people read things that have nothing to do with nationalism but don’t study material related to nationalism… Universalism is all right but still Bharat is the epitome of culture, knowledge... Gyaan and Vigyaan... people should feel that they live in a nation and show respect to the national anthem and the national flag.” The Times of India quoted the bench as saying that playing the national anthem “would instil the feeling within one, a sense (of) committed patriotism ad nationalism.”

So, on one day nationalism and patriotism is fine, on another, it is infra dig or passe.

Worse, the court suddenly went into self-denial mode, by claiming that this call – on making the anthem compulsory and even extending it to other domains – can be taken by the government. The Times of India quotes Justice Chandrachud as saying: “What stops you from amending the rules… to make it mandatory on certain occasions? Why should the court be burdened to decide the issue? Why is the government reluctant to take a call? Why should we be performing the job of the government? It is for the government to take a decision.”

Oh, ah. This is like eating your cake and having it too. The court will not do “moral policing”, but the government is free to do so.

Moreover, this act of self-denial was nowhere in sight on issues where the courts should have been more circumspect about making the law – which is the domain of the executive and the legislature. It is thus all right for the courts to decide whether crackers should be banned in Delhi or not, okay for the courts to decide whether diesel vehicles should be taxed more or not, fine for the judiciary to decide whom to appoint as judges when the Constitution gives the Supreme Court collegium no such leeway, and even decide how cricket should be administered, but when it comes to the national anthem, or scrapping Section 377 of the Indian Penal Code (which criminalises “unnatural” and gay relationships), it is the government’s job, not ours.

Suffice it to say, the Supreme Court has just proven that it can be as wayward and changeable as the weathervane. It has not improved its legitimacy one bit by changing its mind so frequently.