A veil of Constitutionalism over Demosprudence?

I have been wanting to write this post for quite some time now. But due to exigent commitments, as I see them in retrospect, had been holding me back. Coming straight to the issue. At focus is the order delivered by a division bench of Justices Dipak Misra and Ranjan Gogoi of the Supeme Court of India, in the case of Shyam Narayan Chouksey v. Union of India on the 30th of November, 2016.

The following excerpt from the five-pages long order is the cause of debate over the theoretical underpinnings of judicial dictum.

“d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.”

Apparently, the order rodomontades Jürgen Habermas’ idea of “constitutional patriotism”. The sine qua non of this theoretical instrument is pluralism, as against majoritarianism and Utilitarian’s number game or in one word, cosmopolitanism or homogenisation of diverse peoples. However, this is what causes the most trouble.

In his 2001 paper, Constitutional Democracy, A Paradoxical Union of Contradictory Principles?, Habermas has argued as to how constitutionalist principles go for a toss; and are in many ways, irreconcilable with the core framework in which democracy operates-“the greatest good of the greatest number.” The minorities-linguistic, cultural, social, and political find themselves trapped in a nationalist cosmopolitan discourse.

What does not go in line with the apex court’s order is this idea of pluralism and liberalism. It was not that people sans this judicial intervention were not observing due regard towards the national anthem. Thus the order, in a sense, is fruitless, if not counterproductive. Rather than invoking commonality and brotherhood, the preceding of movies now must be subjected to a forced imposition by a court of law. Now, I hope that the films are made more with the function of capturing and targeting the audience’s complete attention; for them to forget about their standing act’s foundation rooted in coercion, firstly by a court of law, and secondly (if some of them chose not to stand in ‘honour’) by the right-wing Bhaktas in the audience.

Thus, the order bespeaks of a quality, which in my sincere opinion, with due respect to the apex court, it lacks and is thus devoid of. Reverence to national symbols is not the same as their imposition. Liberalism must not take a back-seat in the democratic experiment that India has been taking for the last 68 years now. The court has done great things for this country; let it not undo them by engaging in petty and mindless “application.” With this, we come to the hypothesis laid down by Professor Upendra Baxi, where courts of law, or rather specifically, the Indian Supreme Court has been in a functional variant of populist law-making, much akin to the role ought to be played by the legislators as per Montesquieu’s doctrine of separation of powers. Professor has termed this tendency of the Supreme Court as “demosprudence“. Can this be an explanation to the order under consideration here as well? With this question in mind, I intend to close the discussion; and perhaps reflect back after I see Mr Baxi here at NALSAR in the February of 2017.

But, what cannot be understated is the theoretical importance of this recurring paradox of constitutionalist aspirations with democratic realities; and the more important role to be played by courts of law, co-working as unelected part of the ‘State’ structure with the popularly elected legislatures.

With a strong and popular government in power in India now (until 2019), what is to be cautiously looked forward is this very question: how does the Indian supreme court remain independent, free of influence from populist and majoritarian considerations? The court will get many temptations, but it should take cognisance of its sacrosanct role, and great history, to look forward to nothing but to a greater future as a guardian of India’s constitutional ethos and values.

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