ON THE EVENING of March 9, 1954, Edward R. Murrow sat before an American television audience and drew a line that his country, gripped by fear of communism, had begun to lose sight of, when he reminded his viewers that “we must not confuse dissent with disloyalty.” It was the age of Joseph McCarthy and once a man had been placed in the ‘right’ category, there was usually very little ‘left’ to argue about.
Three months later, the method revealed itself in full public view. Joseph Welch was appearing for the United States Army in the hearings that had transfixed the country when McCarthy, rather than meeting the Army’s case, reached for the name of Fred Fisher, a young lawyer in Welch’s firm, and for an old association of his that was said to have Communist links. Welch understood what the mere mention of that name could do to a young man whose reputation had just been carried into millions of American homes, and he asked McCarthy the question that would outlive him: “Have you no sense of decency, sir, at long last? Have you left no sense of decency?” What is worth remembering, however, is not only the question but what had happened just before it, because by then the argument had ceased to be about the issue at hand at all and had become an inquiry into what sort of person stood on the other side.
A singer who asked not to sing
Seventy-two years later, in Court No. 1 of the Supreme Court of India, an argument once again met a label. T.M. Krishna had approached the Court under Article 32 to seek, of all things, the freedom not to sing, by challenging the 2026 amendment to the Prevention of Insults to National Honour Act, 1971 and the Union’s directions requiring all six stanzas of Vande Mataram to be sung. Appearing for him, was Senior Advocate S. Muralidhar. The Solicitor General interjected that law-making happens according to the Constitution and not according to Naxalite’s idea, and when Muralidhar asked him to withdraw the expression, he declined, clarifying that he was referring to an ideology which rejects constitutional decision-making rather than to any individual.
Who walked out of the Constitution?
That clarification, however, leaves a curious question unanswered, which is who in that courtroom had actually abandoned the constitutional method. No one had taken to the forest, no one had set up a parallel court, and no one had claimed a right to make law outside Parliament. A citizen had filed a writ petition, instructed counsel and walked into the Supreme Court to ask three judges what the Constitution permits. He may well be entirely wrong on the merits. But being wrong in a constitutional court is still a constitutional act.
That is precisely what Article 32 was made for, and it is no accident that Ambedkar described it as the very ‘soul’ of the Constitution and its very heart. The provision promises him a door and the right to knock on it, and at that door the Constitution remains magnificently incurious about whether the person knocking is fashionable or inconvenient, majoritarian or marginal, celebrated or obscure. The question inside the courtroom is meant to concern the right that is being asserted, not the respectability of the person asserting it. Justice Joymalya Bagchi placed the matter on firmer ground still when he observed that even a person alleged to be a terrorist does not shed his constitutional rights and must be tried according to law, and asked, in substance, why else people would come to constitutional courts rather than to kangaroo courts. There is something almost elementary about that answer, and it is elementary because the Republic has met the dissenter before.
Bijoe Emmanuel does not decide T.M. Krishna’s petition. It does, however, tells us something more fundamental, which is that a person who disagrees with the manner in which the nation expresses itself does not, for that reason alone, stand outside the nation.
The silence at Kidangoor
Forty years ago, three children stood in the morning assembly of a school at Kidangoor in Kerala while the National Anthem was being sung. Bijoe, Binu Mol and Bindu Emmanuel were Jehovah’s Witnesses, whose faith allowed them to stand respectfully for the Anthem but not to join in singing it, and so they stood in silence every morning until the school expelled them for it. When their case reached the Supreme Court in 1986, Justice O. Chinnappa Reddy began not with patriotism but with law, observing that while Article 51A asks citizens to respect the National Anthem, there was no law anywhere that required them to sing it. He then turned to the very statute which, forty years later and now amended, is again before the Supreme Court, noting that Section 3 of the Prevention of Insults to National Honour Act punished only those who intentionally prevented the singing of the Anthem or disturbed an assembly engaged in singing it, and that three children standing quietly in their places had done neither. Their silence was not an interruption and their conscience was not an insult, and the Court accordingly directed that they be taken back into school.
Bijoe Emmanuel does not decide T.M. Krishna’s petition. It does, however, tells us something more fundamental, which is that a person who disagrees with the manner in which the nation expresses itself does not, for that reason alone, stand outside the nation. Our constitutional law has encountered that person before, and when it did, it did not first ask him to establish his patriotism; it asked only what the law actually required of him.
An older disagreement
The song itself carries an older history of disagreement. In October 1937, Jawaharlal Nehru wrote to Subhas Chandra Bose about the objections that had arisen to Vande Mataram, explaining that he had been reading Anandamath, the novel in which the song first appeared, that he saw some substance in the unease about its later imagery, and that he intended to discuss the matter with Rabindranath Tagore who first sang two opening stanzas of it in the 1896 session of the Indian National Congress in Calcutta, organised under the leadership of its President, Rahmatullah Sayani.
In his article 'Vande Mataram' published on October 30, 1937 Tagore while stating that he sang only first two stanzas remarked that he himself discarded the last four stanzas and wrote, “To me, the spirit of tenderness and devotion expressed in its first portion and the emphasis it gave to the beautiful and beneficent aspects of our Motherland made a special appeal, so much so that I found no difficulty in dissociating it from the rest of the poem and from those portions of the book of which it is part, with all the sentiments of which, brought up as I was in this monotheistic ideals of my father, I could have no sympathy.”
He then firmly put forth that “… national song, though derived from it, which has spontaneously come to consist only of the first two stanzas of the original poem and need not remind us every time of the whole of it, much less of the story with which it was accidentally associated.” Those first two stanzas in the words of Tagore “acquired a separate individuality and an inspiring significance of its own” and so, he saw nothing in it “to offend any sect or community."
The Congress Working Committee thereafter recommended that only the first two stanzas be sung at national gatherings, even as it recorded the immense place the song already held in the struggle for freedom. Nehru’s reasoning was simple and humane: they were choosing a national song for the whole of India, and if parts of it carried an idea that some Indians could not honestly accept, that difficulty could not simply be wished away. If questioning how a national symbol is defined, or how it is to be sung, is a Naxalite’s idea, then it was first entertained by men like Tagore, Nehru and Bose, who disagreed about last four stanzas of Vande Mataram while giving shape to the very country for which it was being sung, and by a Working Committee that sought Tagore’s counsel before it decided.
Even on January 24, 1950, the Constituent Assembly chose not to settle the matter by formal resolution. Rajendra Prasad told the House that although a resolution had been contemplated, it was thought preferable for him to make a statement: Jana Gana Mana would be the National Anthem, and Vande Mataram, on account of the historic part it had played in the freedom struggle, would be honoured equally with it. There is a gentleness in that history which we should be careful not to mistake for uncertainty, because the people who built the Republic understood that national symbols draw their strength not merely from the State commanding reverence for them, but from millions of very different people finding a way to stand beneath them together. That was why Mahatma Gandhi Mahatma Gandhi while describing Vande Mataram as an “an ode to Mother India” made it clear that, “It should never be a chant to insult or offend the Muslims”.
In his book Constructive Programme, in the middle of 1940s Gandhi appealed to the students that, among others, Vande Mataram should not be imposed on others.
Justice Joymalya Bagchi placed the matter on firmer ground still when he observed that even a person alleged to be a terrorist does not shed his constitutional rights and must be tried according to law.
The label and the argument
This is why the choice of words in a courtroom matters so much. A label does something that an argument cannot do, it quietly changes the question being asked, so that instead of examining whether what the citizen says is right, we find ourselves wondering what kind of citizen would say it. The familiar red herring works by sending attention down the wrong trail. A political label can do much the same in constitutional litigation, drawing attention away from the legality of the State’s act and towards the identity of the claimant. Whatever may have been intended by the word “Naxalite”, for a moment it did just that: attention moved from a serious question about vagueness in a penal law to the character of those who had raised it.
Room for silence
Murrow’s warning was never that dissent is invariably noble, since a great deal of dissent is foolish, badly reasoned or simply wrong. His warning was that a republic loses something precious when it can no longer tell the difference between the citizen who disagrees with it and the citizen who has abandoned it. India does not need to borrow that lesson from America, because we have one of our own, written by Justice Chinnappa Reddy at the close of Bijoe Emmanuel, where he reminded us that our tradition teaches tolerance, our philosophy preaches tolerance and our Constitution practises tolerance, and added the plea, “Let us not dilute it.”
Constitutional dissent is not an act of walking away from the Republic; it is the quieter decision to remain exactly where you are while everyone else is singing, and to trust that the Constitution has made room for your silence. Any musician will tell you that silence is not the absence of a song but a part of it, written into the music as deliberately as any note. A Republic secure in its national song should be able to hear the song within that silence too.