(Bloomberg View) -- Amid rising Hindu nationalism, the Supreme Court of India has ordered theaters to play the national anthem before films and directed moviegoers to stand at attention -- no excuses. The Indian Constitution is a wonder of the world, but this decision undercuts free-speech and individual rights at a moment when the country can ill-afford it. The court, which has the final word in interpreting the constitution, can still reverse itself. And it should, because the court’s job is to protect rights, not to impose duties and obligations when the legislature has not done so.
The case arose in a petition by an individual, Shyam Narayan Chouksey, complaining that the national anthem is sometimes sung in circumstances that lead to its disrespect. Chouksey is an otherwise obscure, 76-year-old self-described activist from Bhopal. He explained his motivation by saying that 13 years ago, he was upset when he was the only person in the theater standing when the national anthem was played during a popular movie, “Kabhi Khushi Kabhi Gham.”
Because the anthem was sung as part of a scene in the movie, it isn’t that surprising that no one got up. The scene (which is kind of great) is itself a nationalist fable. A good-looking, well-dressed Indian couple is attending an outdoor benefit-style event for their son’s multiracial private school. As they enter, the wife complains bitterly about the second-class treatment they receive, and indeed they are shunted off to a bad table at the back while the shallow white parents get seated in front.
Their son is introduced to lead a choir in the “Do-Re-Mi” song from “The Sound of Music.” Instead the son starts singing the national anthem. The Indian parents rise in respect approaching awe. The camera pans across the other tables on the lawn in front of the imposing school: No one else has stood up.
The point of Chouksey’s suit clearly isn’t to rectify his pain that his fellow filmgoers weren’t sufficiently moved by the scene to stand up themselves. His suit is plainly political. Although he says he has no party affiliation, Chouksey’s stance resonates with the attitude of Prime Minister Narendra Modi’s ruling Bharatiya Janata Party, which emphasizes national pride and is unsympathetic to dissent.
Under U.S. constitutional law, a private party wouldn’t have standing to challenge other private parties’ conduct during the national anthem. But the Indian Supreme Court has much broader capacity to hear cases.
Its decision took the form of an interim order. Although the court mentioned the Prevention of Insults to National Honour Act of 1971, the basis for its order actually came from the constitution, which unlike the U.S. Constitution, imposes duties and obligations on both the state and citizens.
In particular, the court cited a provision that says, “It shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.”
From this general duty of respect, the court derived the authority to issue the directive to theaters and their patrons. It didn’t say anything about enforcement or what punishment, if any, would accrue to those who do not obey.
But in language that could be interpreted as a reference to the rise of the BJP, the court said 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.”
The holding was therefore symbolic -- but the symbolism was troubling. The court went on to say that the constitution “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.”
That can’t be right, legally speaking. The Constitution of India guarantees freedom of speech and expression in Article 19. On the whole, India has respected those rights since the constitution was ratified in 1949.
The constitutional duty to respect the constitution is a commitment of values, not a recipe for the court to order ritual obedience. In contrast, the guarantee of free speech is an individual constitutional right.
To translate the issue into parochial American terms, the court was endorsing the constitutional vision of President-elect Donald Trump over that of NFL quarterback Colin Kaepernick. As a matter of culture, anyone is free to choose one of these views over another.
As a matter of judicial decision-making, however, the embrace of patriotic nationalism over individual rights is a disaster. The “very purpose” of constitutional rights, as Justice Robert Jackson noted in the American flag salute case, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.”
The principle applies with equal force to the Indian Constitution. The justices should uphold their own duty to “constitutional patriotism” and reverse the interim order.
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