Anonymous
Asked January 19, 2017

SC on the National Anthem

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The new decision of the Supreme Court on standing up for the National Anthem seems to be a far cry from the Bijoe Emmanuel case. Did the Supreme Court consider the Bijoe Emmanuel case while deciding the new judgment?

Answer 1

In the recent case of Shyam Narayan Chouksey v. Union of India is logically flawed. Justice Misra not only went against the established precedent set in Bijoe Emmanuel v. State of Kerala (1987 AIR 748) but also the written text of Section 3 of Prevention of Insults to National Honour Act, 1971. The text of this particular Section categorically states that only those people should be charged under this Section if they have actively interrupted in the singing of the National Anthem or prevented it. However in the present case, Justice Misra has taken a different stand altogether. The Supreme Court’s directions in the national anthem case directly cut against the grain of such precedent. The court has reasoned that “a time has come, the citizens of the country must realize that they live in a nation and are duty-bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible.”

The order is entirely contrary to the Constitution and flies in the face of past precedent. The Supreme Court in 1986 had held that it is not mandatory to sing the national anthem and one cannot be compelled by law to do so. Therefore although the Bijoe Emmanual case had established the position, this case has taken a different stand and based the reasoning on forced notions of Constitutional patriotism. For more information the following sites can be referred to.

 

Sources:

https://www.thequint.com/opinion/2016/11/30/national-anthem-case-supreme-court-justice-dipak-misra-constitutional-patriotism-to-justify-encroachment-of-freedoms

https://indconlawphil.wordpress.com/2016/11/30/the-illegality-of-the-supreme-courts-national-anthem-order/

http://www.firstpost.com/india/supreme-courts-national-anthem-order-the-seven-commandments-of-constitutional-patriotism-3134412.html

http://www.livemint.com/Opinion/yGaPvap9RAMNcRbZzAO6CJ/A-legal-overdose-of-patriotism.html

 

 

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