House or Court cannot order singing

The direction issued by the Justice M.V.Muralidharan is clearly beyond the scope of the writ petition heard by him.  Any answer given in a judgment which did not arise for consideration in that case, is called as obiter-dicta and it could be ignored as the same is not a binding precedent. Further, the case was filed by one unsuccessful candidate in a teacher selection made by the Teachers Recruitment Board. Even the State was not a party to the case.  It was also not a Public Interest Litigation(PIL). If seen in that context, the Judge had overstepped his limits of judicial review. 

Children are not parrots. By making them sing a song they will not imbibe patriotism automatically. Such values will have to be ingrained into them over a period and by inculcating a rational process of understanding things. The decision to include any subject or activity into a school curriculum is best left to educational planners and child psychologists. 

Today, what is required is a speedy disposal of mounting arrears.  The least the judiciary can do is to decide older matters and give a solution to long-standing problems of litigants. Judicial activism, as of now, denotes a method of finding answers to problems which are already laid before the courts. The judges must lay down a proper judicial precedent. The second part of the activism is to see to it that the litigant gets the fruits of his labour.

A judge who indulges in judicial activism must know the dividing line between activism and overreach. There must always be a Lakshman-rekha drawn between the two areas. It is classically known as the Montesquieu Doctrine, where each organ of the state must respect the separation of powers drawn among them. If each functions within its own sphere, there will be no difficulty.  This is especially so for the judiciary as it has been conceived as the umpire to see that no other organ such as the legislature and the government, transgresses its limits.   

Many times, when the court lays down a law, it becomes a difficult process for the executive to implement the same. For e.g., in the Vishaka’s case, the Supreme Court brought in a new law to prohibit sexual harassment at workplace. The Supreme Court decision was in 1997 and the Parliament took 16 years to bring a law on that issue. During the interregnum, the Supreme Court made several clarifications and issued different orders to implement its own law. But ultimately it was the Parliamentary law which had brought a certain amount of neutrality and took note of the serious concerns expressed by the males. 

Sometimes judicial activism has led to avoidable unrest and unwanted protests against its own decisions. A Parliamentary law is made after several deliberations and taking note of different viewpoints.  Its own rich experience is built into them and therefore there is more clarity in it. You cannot keep on giving clarifications in a matter of law and this is especially so in case of a decision involving penal consequences.

For such a concept to become a reality is a difficult proposition. There is always a tendency to lay down precedents in the hope that their dictum will solve several pending problems in society. When the court makes an interpretation of a Parliamentary law, it is also a kind of judicial law-making.  Such things cannot be avoided. The Supreme Court’s action in striking down Judicial Appointments Commission Act is a classic example. Even today, the so-called merits of collegium system has not died down. 

There was no argument regarding making the singing of Vande Mata ram compulsory in that case. This was purely a decision rendered by the Judge on his own without there being a lis before him. Such things happen when one decides matters beyond the brief.  

It is said that unenforceable laws like compulsory singing of the National Anthem would only lead to bureaucratic intervention in people’s daily lives and police corruption. Comment. 

The case relating to the singing of National Anthem in cinema theatres is yet to be over.  What has been passed is only an interim order. It is only when the final case comes up for hearing all points of view may be projected.  A cinema theatre is not a place to test a citizen’s patriotism. 

Even in the Vande Mataram case, the Madras High Court judge has ruled that if there are reasonable objections, then those people need not sing the song. Whether it is a question of eating or singing, it is a choice of the people and it cannot be dictated by anyone from above whether it is a Parliament or the Judiciary.