By Nikhat for TwoCircles.net,
The Context
Some days before, I heard someone speaking very strongly on a very popular English news channel that context changes every time, so the time when Anand Math was written by Bankim Das, the context of the literature may be communal but now one cannot construe it keeping the ancient context in mind. So, taking this on its face value, I am keeping this as pretext and assuming that the context in which ‘vande mataram’ was written must have changed now. (At the same, time there is unanimity amongst historian, scholars and freedom fighters, that the Bankim’s Anand Math portrays strong anti-Muslim sentiments, so was the song, which was later adopted as National Song after removing the Hindu references) This ‘changed context’ is actually my context too i.e. present context. Therefore, orientation (left…right…centre) of this ‘changed context’ is material for me to have a 360o critical scan of the context.
Precisely, I am coming from a context where, in various states, the statue of goddess Saraswati is installed and morning assembly starts with saraswati vandana in government schools, the teachers and students are given training to sing dhuns (hymns or bhajans), government function starts with dhuns (may be ram dhuns), text books portray Sawarkar, the proponent of two nations theory, as a national hero and freedom fighter, picture of Hindu goddess holding bhagwa (saffron) flag in her hand, riding tiger etc. on the cover of books.
I am also coming from the background where the cultural and religious rights are being violated with impunity, where cultural-religious centers like Mosques, Madrasas, Churches and trust properties are targeted without remorse and acknowledgement of guilt. All in name of Hindutva.
Communal fascism loaded with hate and discrimination and alienation of minorities especially Muslims and Christians is my context. Impunity for one and criminality for other is my context. Differential rule of law is my context.
Melodious Debate- Malicious debate- Debate of I and you… We and They
The current debate around singing and not singing the national song has grown so intense and chauvinistic, as if this is the only and final test to judge patriotism. Soon, with the proclamation of the Fatwa, the politics of debate started hopping in all directions like the rubber ball. And the most ghastly and notorious one (which was very popular also) was “Jamiat Ulema-e-Hind; a traitor or patriot”.
And very obviously, the entire debate turned into two poles that are traitors and patriots. Those who are claiming patriotism and terming all who are taking a liberal middle path, as pseudo-seculars, traitors, are the same who are mainly responsible for my context. The constant endeavor of all of them is to perpetrate a sense of anxiety, an unwanted anxiety in the audience (youth, men and women).
The Real Test of Constitutionalism
The questions of importance here are: firstly, whether refusal to sing ‘vande mataram’ amounts to disrespect or insult to national honour or not? Secondly, fatwa (An expert religious opinion) for not singing ‘vande mataram’ is disrespect or insult to national honour? And last but the most, what should be the litmus test for patriotism?
Starting from the last, constitution is the only litmus test of patriotism and an extra-constitutional test such as ‘Hindutva Scale/Balance’ is meaningless, therefore, disqualifies them from the debate.
The constitution of India imposes a fundamental duty on every citizen to abide the constitution and respect its ideals and institutions, the national flag and the national anthem1. Although there is no direct and specific reference to ‘national song’ in the chapter on fundamental duties but ‘vande mataram’ is considered very cardinal symbol of nationhood.
Before entering the sea of arguments, it is important to describe the kind of sanctity accorded to National Song by the Supreme Court of India, which severally observed that National Anthem, National flag and National songs are secular symbols of nationhood2, our honor and heritage3 representing the supreme collective expression of commitment and loyalty to the nation as well as patriotism for the country4. Also, it is very integral to secularism, which is a basic structure of the Constitution of India5, a concept, evenly blended with the principle of non discrimination of people by the state on the basis of religious differences. 6 In the light of the above, respect is essentially one of the pre-requisites for being a real, loyal and patriot citizen of India. Follow from this then that ‘what is respect and disrespect’ is quite a natural question here, which completes the circle at the first and second question raised above.
The Respect
This question came before the bench of Justice O Chinappa Reddy and Justice MM Dutt of the Supreme Court of India for the first time in the year of 1985-867, when Department of Education, Kerala had issued two circulars mandating forced singing of National Anthem (Jana Gana Mana) in schools. As a result three children from Jehovah’s Witness community (a sect of Christian) were expelled on account of refusal to sing national anthem though respectfully standing for it. It was maintained by the expelled children that the singing national anthem is against the tenets of Jehovah’s Witness.
The Supreme Court of India has held that the conduct of children does not amount to disrespect to the national anthem. Neither any provision of the Prevention of Insult to National Honour Act 19718 nor the fundamental duty under Article 51A (a) have been violated.
It was further observed that there is no provision of law which obliges anyone to sing national anthem and also forced singing of National Anthem in this case is violative of fundamental freedom of conscience, and free profess, practice and propagation of religion 9.
The right to remain silent (precisely, right not to sing) was upheld under the right to free speech and expression10 for the first time in this case.
The Supreme Court of India had made a very important point while making an observation in the case that “the real test of a democracy is in its ability to even an insignificant minority to find its identity under the country’s constitution.
Contempt Application in Supreme Court of India
Soon after this Judgment, a contempt petition was moved in the Supreme Court of India by Contempt Petition No. 4210/1986 before the three judge bench of Chief Justice Bhagwati, Justice Oza and KN Singh against the then Chairperson of Trade Fair Authority of India Mr.
Mohammed Yunus, on making a statement against the Supreme Court Judges in the above case. He had written in the Indian Express that “who held that the singing of national anthem was not compulsory had no right to be called either an Indian or a Judge.”
The Solicitor General of India refused to grant permission for the contempt on the ground of public interest, leading to dismissal of application by the Supreme Court of India as Judges found the decision of Solicitor General is not irrelevant in the eyes of law, arbitrary, illegal and unreasonable 11.
Legality of Fatwa
It is apparent that the subject matter of this fatwa is not an alien one and it won’t be unjustified in saying that it is well within the limits of constitution of India, fundamental freedom of religion and speech and expression.
Need for Fatwa
In my opinion, the fatwa was not needed, simply because at this time no one was forcing anyone to sing ‘vande mataram’ and to the adverse side of it, it has given a readymade agenda in the hands of the right wing parties to cash.
Precisely for me, this fatwa is a projection of the sense of greater insecurity in terms of culture and identity of Muslims, which is there or not there. (Insecurity and security questions can be debated and argued either ways. So this is my belief, firm and grounded in my day to day experiences). Also this kind of litmus tests, to which every Muslim has to undergo every time, is also a cause of this insecurity. If this goes unabated, we the people of secular and democratic republic will lead to nowhere.
Let us not dilute it
Our traditions teach tolerance, our philosophy preaches tolerance, our constitution practices tolerance; let us not dilute it.
References
- Article 51A (a), Constitution of India
- Union of India vs. Naveen Jindal (2004) 2SCC 570
- Sanjeev Bhatnagar vs. Union of India (2005) 5 SCC 330
- Refer note 2
- SR Bommai vs. Union of India AIR 1990 Kant 5 (FB)
- Aruna Roy vs. Union of India (2002) 7SCC 368
Bijoe Emmanuel and others vs. State of Karnataka (1986) 3SCC 615- Section 3, the Prevention of Insult to National Honour Act 1971: “whoever intentionally prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in singing shall be punished with imprisonment for a term, which may extend to three years or/and fine.”
- Article 25, Constitution of India
- Article 19 (1) (a)
- Conscientious Group vs. Mohammed Yunus (1987) 3SCC 89