Perhaps, the true intent behind the existence of the apex court is getting diluted. It’s time the court introspects on its true purpose
On November 30, the Supreme Court heard a public interest litigation seeking issuance of a prerogative writ to the Union of India, to draft measures for installing respect for the National Anthem. Next, it issued seven interim directions awaiting Centre’s response and made them operative after 10 days.
A lot of ink has since flown against the order as the matter was posted before the same presiding judge who had passed a similar order in a High Court in a similar petition by the same petitioner. The court treated the National Anthem as a symbol of the German doctrine of ‘constitutional patriotism’ and made participation in the National Anthem mandator. It arbitrarily chose to screen the National Anthem only before ‘feature films’ while the entry and exit doors remain closed. Thereby it enforced a fundamental duty vide legal sanction which is constitutionally barred and expanding it to foreign nationals, without addressing or comprehending statute books and practical aspects of its non-enforceability.
After rejecting a plea for playing the National Anthem before court rooms, for want of a proper petition, recently, the bench, in a recall application, filed by a Kerala-based film society, admitted its impleadment application and posted the application seeking re-call along with the main matter.
The Bench also issued two clarifications/modifications ie persons with disability, as defined under section 2(i) and 2(t) of the Disability Act, 1995, shall not be asked to stand up, but show respect, and directed the Centre to bring in a notification within 10 days to that effect. It was further clarified that as per para 75 of the verdict in Uphaar Cinema fire case (2011), the doors shall not be bolted.
There are four notable lacunas here. First, the nature and extent of pragmatic enforceability of the order is undefined and the ambit of commercial exploitation, nationalism, inherent national quality, dramatisation, among other expressions used by Justice Dipak Misra has not been explained.
Second, in a surcharged atmosphere where even a whisper can lead to riots, lack of a specific direction to the States or law enforcement agencies may encourage a fresh crop of ‘Anthem vigilantes in view of symbolic nationalism and self-assumption of national interests on lines of cow vigilantes.
Third, the order does not refer to AIIMS Union (2002), as approved in Mirzapur Moti Kureshi Kassab Jamat (2005), which says that fundamental duties are not enforceable by writ of a court and Bijoe Emmanuel (1986), which is the binding precedent on this aspect.
Fourth, the whimsical and arbitrary pick of ‘feature films’, has opened a pandora’s box. The compelling process of the Anthem movement by the apex court may expand itself to other artistic areas and sciences.
looking at the remedial measures, to cure the order passed, there is no statutory appeal from orders of the Supreme Court. There are three options. Article 137 prescribes a review of orders passed by the apex court. The recall application may be partially allowed and the order may be clarified/modified. The Supreme Court may on its own cure the defects in the order in due course as the interim order seems to be experimental in nature. The next date for the recall application and the main matter collectively is February 14, 2017.
Interestingly, while the Supreme Court has ample powers to judicially review any executive or legislative action, vide its writ jurisdiction, if it ultra vires the Constitution or for that matter, any statute book, it cannot issue a writ to itself.
While it is busy handling petitions for banning sardar jokes, making people apologise for their political comments, hearing politically-motivated and sponsored PIls and self-assumption of powers in view of establishing its guardianship over the Constitution, the true intent behind its very existence is getting diluted somewhere.
Thus, the true intent behind its very existence is getting diluted and important constitutional matters are losing their essence. It’s high time the apex court introspects its true purpose and stops expanding its wings to areas where its expertise does not lie. The National Anthem is one of the pinnacles of incorrect orders passed by the court lately. Hopefully, wisdom will prevail in coming days.
(The writer is a practising lawyer in the Supreme Court)