“Popcorn Nationalism” at the Supreme Court of India

Litigation & Arbitration / Tuesday, January 30th, 2018

On 30 November 2016, the Supreme Court of India, entertaining yet another Public Interest Litigation from yet another “public spirited person”, proceeded to issue a set of wide ranging interim directions concerning the respect of the National Anthem. 

The interim directions include :

  • measures relating to compulsorily playing the National Anthem in cinema halls before the start of a feature film (paragraphs (d), (e) and (f) of the order) ;
  • prohibitions on the “commercial exploitation”, “dramatization” or abridgment of the National Anthem (paragraphs (a), (b) and (g) of the order) ;
  • a general prohibition on the display and printing of the National Anthem in manners that would be tantamount to disrespecting it (paragraph (c) of the order).

The scope of these directions is certainly a matter of concern for any student of the Indian Constitution and the interim order of the Supreme Court was famously criticized during subsequent hearings as a case of “popcorn nationalism” . 

Gautam Bhatia, a noted analyst of constitutional developments in India, writes that what “passes for ‘reasoning’ in this ‘order’ ought not to be dignified with legal analysis” and deals instead with larger questions of judicial censorship which the order brings back into focus.

In effect, with the exception of paragraph (c) of the order dealing with the disrespect of the National Anthem, the interim directions of the Supreme Court are patently illegal. 

On the one hand, as regards paragraphs (a), (b) and (g) of the order, it may be noted that the National Anthem is a work in the public domain. No blanket restriction upon its commercial exploitation (paragraph (a)), dramatization (paragraph (b)) or abridgment (paragraph(g)) could be regarded as a reasonable restriction under article 19(2) of the Constitution. These directions would thus fall foul of article 19(1)(a) of the Constitution which grants the Fundamental Right of speech and expression to citizens of India. 

On the other hand, as regards paragraphs (d), (e) and (f) of the order relating to the playing of the National Anthem in cinema halls, these directions could have been sustainable had they been imposed via the legislative or executive route and subsequently passed judicial review. In the absence of such legislative or executive action, the Supreme Court’s directions would be illegal to the extent that :

  • the Court has no power to unilaterally impose restrictions upon the Fundamental Rights guaranteed under Part III of the Constitution, except when it acts in contempt proceedings or similarly exceptional circumstances ;
  • the obligation imposed upon cinema halls to play the National Anthem would, at the very least, be a form of imposed speech and thereby a restriction upon cinema owners’ freedom of speech and expression.

In this respect, it was the Court’s duty to refrain from stepping beyond its jurisdiction and to uphold the separation of powers under the Constitution, notwithstanding the Union of India’s seeming willingness to waive its constitutional prerogatives during the hearing.

Unfortunately, it is too late in the day to revisit these follies of judicial interventionism.

Finally disposing of the case after hearing it on seven different occasions, the Court has mildly watered down its initial prescriptions, holding that the “playing of the National Anthem prior to the screening of feature films in cinema halls is not mandatory, but optional or directory”. Reports indicate that even this concession was only obtained after a change in the composition of the bench hearing the case, with one judge adopting a more skeptical approach on the matter.

The judicial prohibition on the commercial exploitation, dramatization and abridgment of the National Anthem remains in force, at least until such time as further regulations or legislation are adopted on the subject. 

Popcorn Nationalism is here to stay. Would another “public spirited person” turn up at the Supreme Court and manage to convince it otherwise ?