The Supreme Court had earlier ruled that non-observance of respect towards the National Anthem was a criminal offence wishes to re-visit the issue and has asked the Union Government to elaborate its contention once again. The fundamental issue that they would have to rule upon is whether an individual’s right to disrespect the national symbols that define our identity are consistent within the parameters of freedom of speech and expression. Prof Ashoka addresses the contestation on this issue, in his erudite debate, exclusively for Different Truths.
I have been watching the debate over the issue of whether one should face legal penalties on not extending respect to the National Anthem with an increasing sense of dismay. On a personal note, my own family members have spent several decades in different prisons during the freedom struggle and for me the National Anthem is not just a song but something from which I draw most of my inner strength; it serves as a real ‘querencia’, not just for me but for hundreds of millions who value their Indianness and the values it represents. Literally, I experience goosebumps whenever it is played whether I am in India or abroad; especially so when I am abroad.
I, therefore, feel deeply offended whenever I observe it being even mildly disrespected let alone ridiculed. My boarding school morning assembly always used to end with us joining the chorus.
Given the strength and intensity of my emotions plus my personal links – some of my forebears were known to Tagore and held him in the highest veneration – I would be expected to support the institution of penalties for non-demonstration of respect to this foremost symbol of our Indian identity. I have deliberated over the issue in detail and must admit in the process had to contend with different dilemmas at different stages.
It appears that our Supreme Court, which had earlier ruled that non-observance of respect towards the National Anthem was a criminal offence wishes to re-visit the issue and has asked the Union Government to elaborate its contention once again. The fundamental issue that they would have to rule upon is whether an individual’s right to disrespect the national symbols that define our identity are consistent within the parameters of freedom of speech and expression.
A lot of bad-tempered debates have taken place on the television but to my surprise, the landmark judgement that addresses this very issue was never alluded to even by the senior lawyers, who participated in these hollering contests.
Justice Brennan delivered the opinion of the Court.
After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not.
The judgement goes on to state:
We have long recognised that its protection does not end at the spoken or written word. While we have rejected the view that an apparently limitless variety of conduct can be labelled “speech” whenever the person engaging in the conduct intends thereby to express an idea, United States v. O’Brien, supra, at 376, we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,”
We acknowledged that the government’s interest in preserving the flag’s special symbolic value “is directly related to expression in the context of activity” such as affixing a peace symbol to a flag. 418 U.S. at 414, n. 8. We are equally persuaded that this interest is related to expression in the case of Johnson’s burning of the flag. The State, apparently, is concerned that such conduct will lead people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts, or that the concepts reflected in the flag do not in fact exist, that is, that we do not enjoy unity as a Nation. These concerns blossom only when a person’s treatment of the flag communicates some message, and thus are related “to the suppression of free expression” within the meaning of O’Brien. We are thus outside of O’Brien’s test altogether.
Johnson was convicted for engaging in expressive conduct. The State’s interest in preventing breaches of the peace does not support his conviction because Johnson’s conduct did not threaten to disturb the peace. Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.
Justice Anthony Kennedy wrote a concurring note which I am inclined to reproduce in its totality:
I write not to qualify the words Justice Brennan chooses so well, for he says with power all that is necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks.
The case before us illustrates better than most that the judicial power is often difficult for its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honour of carrying the flag in battle. And I agree that the flag holds a lonely place of honour in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.
With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.
For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free.
In other words, no matter how repulsive the action of disrespect to the enduring national symbol might be, it is fully covered within the parameters of freedom of speech and expression.
It is worthwhile pointing out that Justice Anthony Kennedy was appointed to the US Supreme Court by Ronald Reagan for his supposedly conservative views. And Justice Brennan was appointed by his predecessor Dwight Eisenhower again to buttress his conservative position in the Brown vs Board of Education judgement. Justice Brennan is no more but Justice Kennedy is generally regarded as the most erudite judicial figure in the world today.
The purport is unequivocal; as long as we accept the primacy of freedom of expression as an edifice of democratic machinery, we have to put up with conduct that may be inimical to us! Fundamental rights are not just contingent on being a good citizen.
The query that arises from this position is whether there are effective extra-legal remedies which might be able to curtail this conduct. From a philosophical standpoint, I have always believed that social ostracisation if practiced is infinitely more effective than legal remedies. I for one have never seen anyone blow his nose during a church service; I have never seen anyone holler on a golf course.
When a society reaches a consensus on a set code of social conduct, any deviation from it brings out strictures which are far more effective than legal sanctions. Ruefully that is one of the major problems we have to contend with every day in our society. There is hardly any issue on which we can reach a consensus primarily because of selfish reasons. What is to prevent us from cleaning our political stables and demand decorum from our representatives! We have and have had representatives who have indulged in the most venal and indecorous acts in the secure belief that they are not just going to be tolerated but also being rewarded by a section whose selfish interests may be in perverse sync with these shenanigans. I am inclined to recall George Orwell who had once very astutely stated:
“A people that elect corrupt politicians, imposters, thieves, and traitors are not victims… but accomplices”
I do not think anyone believes that a person who does disrespect the enduring national symbols – whether it be the flag or the National Anthem or the requirement of respect for the other fellow citizen or observance of a view contrary to one’s own – does so without the belief that he or she is short of support from the political quarters.
Most organs of state have become comprehensively discredited. Personally, while I respect the administrative offices, I am disinclined to extend the same respect to individuals that hold them unless I can see clear reasons. I have at different stages fiercely criticised those who have held or are holding the highest offices and shall continue to exercise my constitutional right to do so. My position is that unless those mandated to uphold the dignity of these symbols are seen to be above board, they would not be in a position to exercise the moral authority needed to enforce a code of conduct that would keep them safe. It is simply odious to hear them spout sanctimonious morality and even invoke the honour of our armed forces. Unlike the UK, the US and other countries, where a spell in the armed forces is regarded a badge of honour, almost all our politicians never consider a career in the armed forces for their kin and everyone dismisses that as lip service.
The solution, therefore, lies in our hands. We can declare that we shall do without an essential pillar of democracy like the freedom of expression and criminalise this highly offensive and aberrant conduct. Alternatively, we can set about the task of effectively eliminating these venal political interlopers from our polity! They have had a undeservedly long run!
©Prof. Ashoka Jahnavi Prasad
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