The Freedom of Unpatriotic Speech
Author: Viraj Vaidya
College: Government Law College, Mumbai
“I do not agree with what you have to say, but I'll defend to the death your right to say it.”
- Evelyn Beatrice Hall
Patriotism is an individual belief that is it is his prerogative to express it or not to express it in any way he wants to. It is a right protected under Freedom of expression under Article 19 of the constitution and it is ironical that the government forces its citizens to show affinity for the nation and the constitution while openly flouting its most important fundamentals. The freedom of speech is the matrix, the indispensible condition of every other freedom. The freedom of speech not only includes the right to express but implies freedom not to listen and to not be forced to listen.(Excel wears Vs Union of India) The government has shown open disdain for critics of its policies by disseminating propaganda that government and nation are one entity and disrespect for the former is by equivocation disrespect for the latter. A nation is an ideal, it has to ability to withstand the test of time and the government uses it as a shield to protect itself. In this defensive maneuver it is the shield that is battered whereas it should have been the government at the brunt of the attack. The nation isn’t in danger from the people who are labeled as being unpatriotic and anti nationalist, it is accommodating of people with diverse opinions. The real danger is posed by the enterprise stifling this voice. Suppressing this voice isn’t unlike strangling the nation itself.
A recent Supreme Court judgment mandating the standing up for national anthem is another overzealous attempt which serves no other purpose than a instrument for this ever growing band of jingoists to impose their preferred definition of patriotism down another person’s throat. This is a direct violation of life and liberty of a person as it is his liberty to represent his actions and gestures in a reasonable manner as long as it isn’t derogatory in nature and the Supreme Court judgment have undercut the value of his liberty in this case. The court stated that the purpose of this measure was to instill a feeling of nationalism and to uphold the constitutional duty to be patriotic. This reasoning is difficult to understand from both, legal and logical perspectives. The fundamentals duties state that 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;
Fundamentals duties are corollaries to fundamental rights, they are like parallel tracks necessary to keep a train from derailing but never coincide with each other as Fundamentals rights are enforceable in courts but the corresponding fundamental duties cannot. It also seems like a stretch to presume that not standing up for the national anthem in a movie theatre will be in contravention of fundamental duty stated above.
It also lacks legal grounds as various provisions facilitate the protection of various national symbols from desecration and does not compel the citizens to abide by them. Section 3 of Prevention of Insults to National Honour Act states that- whoever intentionally prevents the singing of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both. This specific National Anthem Case ruling is ultra vires to the provisions of this act.
In the case Shyam Narayan Choksey V Union of India which has laid down guidelines regarding screening of films, one of them compels movie theatres to play the national anthem before every movie is a clear violation of the Fundamental Right to Trade under Article 19-1(g).It also compelled people to stand during the national anthem whereas there is no basis to do so. This has also been held in a previous ruling Bijoe Emmanual Vs State of Kerala- “There is no provision in law which obliges anyone to sing the National Anthem nor is it disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing. Standing up respectfully when the National Anthem is sung but not singing oneself clearly does not either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in Sec 3 of the Prevention of Insults to National Honour Act.”
Another dangerous precedent involving such a scenario is the enforceability of Fundamental Duties given under Article 51A. The duties are an irrefutable part of the Constitution and it is a citizen’s responsibility to fulfill these obligations. However, there is no legal sanction present for non- performance of these Fundamental Duties.
The judgment uses vague language and terms are not provided clear definitions so as to enable their implementation. This will only lead to confusion and mass hysteria among jingoists who do not understand the ruling but construe it based on their perception which is incorrect as there should be a reasonable and objective standard to do so.
When a judgment uses ‘vague expressions’ capable of misuse, abuse without providing notice to persons of common intelligence to guess their meaning, it leaves them in a boundless sea of uncertainty, conferring wide and unfettered power on a busybody to prosecute the citizen, filmmaker, theatre owner. Such an order and potential mischief will not qualify as ‘just, fair and reasonable’ procedure and fail the tests of due process, being arbitrary.
The case exemplifies the state of society where fringe elements may endlessly persecute anyone who does not assent to their viewpoint. The order lacks legal basis and is arbitrary and imposes sanctions that don’t conform to the majority’s view on state symbols. The respect towards a state symbol is ingrained and inculcated and such a ruling will only sow even more discontent as it usurps the people’s fundamental rights.
In real democracy the dissenter must feel at home and ought not to be nervously looking over his shoulder fearing captivity or bodily harm or economic and social sanctions for his unconventional or critical views. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.
Ideally, this is a matter of black and white and there should be no gray area. Either you are patriotic or treasonous. Just by virtue of being a committed, law abiding, hard working citizen you are a patriot and not standing up for the national anthem or not saluting the flag does not dilute your national identity but enhances it. The country needs more patriots than patriotism, patriotism has become a tool to disparage and demean. Oscar rightly said, “Patriotism is the virtue of the vicious.
 DD Basu Introduction to the Constitution of India ,22,111
 Excel Wear V The Union of India 1979 AIR 25
 Bijoe Emmanuel V State of Kerela 1987 AIR 748
 Shreya Singhal V Union of India AIR 2015 SC 1523
Disclaimer: The opinions expressed in the article or any other publication are those of the authors. They do not purport to reflect the opinions or views of educoncours or its members