The Madras High Court recently made it to the headlines when by one of its orders it directed compulsory singing of Vande Matram (the National Song) in all schools and educational institutions once a week. Such an order attracted debate from all spheres, wherein some lauded it as a sign of patriotism while others termed it as “forced” patriotism. However, what escaped scrutiny in this debate over patriotism was how the order suffered from certain blatant illegalities. The aim of this article is to focus on two such core infirmities, namely, how the order is an active exhibition of judicial overreach and flouts an earlier ruling of the Apex Court.
Article 51A of the Constitution of India, lays down certain obligations termed as the fundamental duties, which every citizen is expected to abide by. One such duty is to show respect towards the National Anthem. However, such a status has not been accorded to the National Song. The High Court [HC] seems to take a cue from the obligation to respect the National Anthem, and tries bringing the National Song within the ambit of the duty too. However, a key distinction lies in the point that the former is provided expressly in the Constitution, while the latter is not. Therefore, the Court essentially goes onto create something that is not present in any law. This instance of the Court incorporating something that does not expressly exist in the statute books, demonstrates what has been termed as judicial overreach, as law making is the primary task of the legislature and not the judiciary. At times when the judiciary has attempted to do so, the Apex Court has looked down upon it. Therefore, the said order of the High Court clearly qualifies as a judicial overreach.
The Madras HC is not the first Court in the country, to show such deep affection towards the National Song, as even the Rajasthan HC in 2015 had upheld a government order making it mandatory to sing the same. However, despite the HC according it a mandatory status, the Apex Court does not seem to nod in agreement. The Supreme Court by virtue of an order issued in a similar plea in early 2017, categorically held that despite the mandating of singing of the National Anthem, it will not enter into a similar debate as far as the National Song is concerned. This crystallises the author’s argument further, that no such compulsion for the National Song is to be entertained by the Court.
Patriotism as a feeling comes from within, and is not something that can be generated by force and compulsion. However, as of late, it seems the Courts show disagreement over this emotive understanding of the concept. The High Court order unlike the National Anthem order, provides for non-participation in singing, if ‘valid reasons exist’. However, all of us in the past have seen that it is safer to give in to the compulsion than justifying one’s reasons, no matter how justifiable they may in fact be. The need of the hour is for the Indian judiciary to refrain from entering the moral and rather subjective compass of instilling patriotism in the public. By in fact rendering such orders, what the judiciary is instead doing is diluting whatever patriotism may exist. It is only if the Courts act responsibly and follow the word of the Constitution, respecting the federal character of the document, do we perhaps stand to gain in the longer run.