Subject: LAW AND JUSTICE IN A GLOBALIZING

WORLD

L.L.M Batch 2018-2019

A Project Report
NATIONALISM – A CRITICAL ANALYSIS

Submitted by
SUHANI Y. MERCHANT (A008)

Under the Guidance of

PROF. SUNIL GEORGE

Specialization: Corporate Law

Date: 15/09/2018
Signature:
 ACKNOWDEGMENT

First and foremost, I take this opportunity to thank M r. Sunil George, faculty, Law and
Justice in Globalizing World, NMIMS Kirit P. Mehta School of Law, for assigning me
this topic to work on. He has been very kind and patient throughout in providing inputs for
this work, by way of suggestions, books and articles, and to share with me his treasurable
time, thoughts and insights.

Secondly, I would like to thank my fellow batch mates for their support and inputs while
carrying out this research.

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 TABLE OF CONTENTS

LIST OF STATUTES REFERRED ....................................................................................... 4

LIST OF CASE LAWS ........................................................................................................... 5
CHAPTER 1: INTRODUCTION ........................................................................................... 6
CHAPTER 2: LITERATURE REVIEW............................................................................... 8
CHAPTER 3: INDIAN NATIONALISM ............................................................................ 10
CHAPTER 4: THE PRESENT SCENERIO ....................................................................... 13
CHAPTER 5: IMPACT OF NATIONALISM IN GLOBALIZING WORLD ................ 17
CHAPTER 6: LEGAL ANALYSIS ..................................................................................... 19
CHAPTER 7: ROLE OF JUDICIARY ............................................................................... 23
CASE LAWS: ......................................................................................................................... 23
CHAPTER 8: CONCLUSION.............................................................................................. 29
CHAPTER 9: A WAY FORWARD ..................................................................................... 31
BIBLIOGRAPHY .................................................................................................................. 32

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 LIST OF STATUTES REFERRED
1. The Constitution of India

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 LIST OF CASE LAWS

1. Shyam Narayan Chouksey vs Union Of India on 9 January, 2018 [ WRIT PETITION

(CIVIL) NO.855 OF 2016]

2. Union Of India vs Naveen Jindal & Anr on 23 January, 2004 Appeal (civil) 2920 of
1996
3. Bijoe Emmanuel & Ors vs State Of Kerala & Ors on 11 August, 1986 1987 AIR 748,
1986 SCR (3) 518, (1986) 3 SCC 619

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 CHAPTER 1: INTRODUCTION

The term “nation” etymologically means a group of people sharing common stock or race.
Nationalism is a strong sentiment of oneness, togetherness and consciousness which is based
on political, historical, religious and socio-cultural and other factors in a state. It is a feeling
evoking “a collective consciousness of fellowship”. Nationalism rises in completely
independent state which constitutes a Nation. A nation signifies majority of people in a state
brought out together by emotional, spiritual and political forces known as nationalism. The
nation stands for a very large number of people who feel that they are related to each other by
the ties of common race, land, emotions, boundaries, culture, language, history, religion and
political aims and aspirations. A specific nation may not have all of the above factors, it may
have only some of them, but this feeling should be strong enough to rouse a collective
political consciousness among the people. The common consciousness, political unity and
independence forms the essential elements of nationhood.

Nation and State – a different concept

The term “Nation” and “State” must not be equated as same. The term ‘nation’ connotes a
large number of people sharing the same territory which are welded by common laws, habits,
customs, into one body political which is run by a medium of politically organised
government, exercising independent sovereignty. The term “nation” has a wider connotation
then the term ‘state’. State is political and legal entity whereas nation is a socio-cultural
entity. Nationality is subjective whereas statehood is objective. Nationality is the condition of
mind and statehood is the condition in law. Nationality is the way of thinking and living;
statehood is a condition inseparable from all civilized ways of living.

Nationalism and Patriotism

Patriotism is the hard core of nationalism. However, the two terms are not synonymous even
though they are used inter-changeably. Patriotism is devotion for one’s own country or
homeland. Nationalism is political consciousness which patriotism may not have. For the
nationalism to exist it needs patriotism; whereas patriotism may or may not have nationalism.

Nationalism has much to do with understanding the society and finding ones identity as t he
member of that society. Nationalism cannot be reduced to mean merely waiving of national
flags and shouting slogans and penalizing people for shouting slogans. Nationalism requires a

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far greater commitment to attending to the needs of the nation rather than sloganeering and
that too with the slogans focussing on territory or ones that have a limited acceptability.

Historians see the nation as a modern concept and do not trace it to antiquity. It emerges at a
specific point of time that dates to the post- Enlightenment period in Europe.

Factors Creating and Promoting Nationalism

Nationalism is a vital force in modern times clearly emerged in the 19 th century. In the
20th century, nationalism became more conspicuous and came to be taken almost for granted
everywhere in the world like air and water. In some states like Germany and Italy , it became
an over-riding passion reaching frenzied heights. Nationalism is a modern force. It was
absent in the ancient and medieval times. In ancient times, there were city states, tribal states,
kingdoms and empires; in medieval times there were feudal states; but in modern times we
have nation states. Nationalism became a mighty force in Europe in 19 th century and went
hand in hand with democracy.

Common land of permanent settlement with al sacred ideas associated with it is an

indispensable factor creating a strong common bond and an emotional sense of belonging
among the people. Without common motherland clearly marked out by geographical
boundaries, people cannot have a visible concrete basis for their national feelings.

A common historical tradition and culture in the same land can weld the people into nation.
Common food habits, mode of dress, custom etc can develop nationalism with ease. Racial
homogeneity is a highly favourable factor and natural dislike or hatred of one race from
another can create an atmosphere and prevents the forging of common ties. Common religion
and language also strengthens national ties and marks as a symbol of mature nationahood.

HYPOTHESIS

1. Nationalism is a secular religion.

2. Nationalism is a many- sided and potent political ideology, though we can point out
some general characteristics shared by all nationalist movement world-wide.
3. The nation- state is the basic political community in the contemporary world despite
regional and global challenges.

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 CHAPTER 2: LITERATURE REVIEW

1. Romila Thapar, A.G.Noorani, Sadanand Menon ; On Nationalism; Aleph Book

Company; ISBN No.- 978-93-83064-11-3

The authors of this book have expressed their views on the topic of nationalism, anti-
nationalism and on the sloganeering so as to prove one’s patriotism and nationalism. The
authors have stated in their book have attempted in taking the readers to the journey starting
from the history of nationalism to the contemporary nationalism by highlighting the
Reflections of the past to the present attitude of nationalism and from national c ulture to
Cultural Nationalism. This book has helped the project to understand how that nationalism
requires a far greater commitment to attending to the needs of the nation rather than
sloganeering, and that too with slogans focusing on the territory or o nes that have a limited
acceptability. The authors of this book also deals with the question of what is national and
what is anti- national depends on what is understood by nationalism as thus nationalism
cannot be without any limits and this limits have to be carefully be understood.

2. B. K. Gokhale; Political Science – Theory and Gove rnmental Machinery

;Chapter 5; Section II, Himalaya Publishing house;

The author of this book has specifically mentioned about the history and the factors which
leads to creation or promotion of Nationalism. This book deals with the detailed study of
many other political aspects like democracy, federalism and socialism. This book has helped
this project for critically studying the factors which led to the emergence of nationalism
along with understanding the emergence of nationalism in other nations of the world. This
book has helped to understand the relationship of nationalism with that of the
internationalism.

3. Adlai Erwin; Nationalis m in a Globalized Era; Westminster Journa l for Global

Progress; published on Mar 31, 2017

This article published on Nationalism in a Globalised Era mentions the emergence of

nationalism in the globalized world. It studies the relation between nationalism and
globalization starting from the meaning and its history to the relation between the same. It
studies the positive and the negative impact of globalization in the arena of nationalism. It
states how the migration of people from one place to another has made all the nations into

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one and the emergence of secular nationalism all over the world. This research paper has
helped my project to understand the consequences of nationalism in the light of economic
upliftment, social interdependence and migration.

4. Krishnadas Rajagopa ; SC modifies order, says playing of national anthem in

cine ma halls is not mandatory; published on NEW DELHI, JANUARY 09,
2018; ISSN no. 22403095

This article focuses on interim order modified by The Supreme Court dated November 30,
2016 and made it optional for cinema halls to play the 52-second national anthem before
every show. A Bench, led by Chief Justice of India Dipak Misra, clarified that it is not
mandatory to play the anthem before screenings in cinemas. It left the choice of whether to
play the anthem or not to the discretion of individual cinema hall owners. It lays down the
emphasis that if the national anthem is played, patrons in the hall are bound to show respect
by standing up. The court clarified that the exception granted to disabled persons from
standing up during the anthem “shall remain in force on all occasions”. This article has
helped my project in understanding that nationalism is not to be compulsorily shoed by
playing national anthem but the respect for it should come from within oneself.

5. Gangeya Mukherji; An Alte rnative Idea of India: Tagore and Vivekananda ;

Journal of Hindu Studies ; ISBN: 978-0-415-67693-9

The author of this journal has critically studied the book written on the ideas of Tagore and
Vivekananda. The question of India’s nation and nationhood is a topic of much discussion in
colonial India, as well as contemporary political thought. Even though the cultural unity of
India is stressed, along with its characterising multiplicity, the question of nationalism did not
fare well in India, initially, due to the sectarian tendencies of the colonial era. The book
addresses this early period in the formation of the ideas of nationalism, as it evolved from
these initial constraints, representing inclusive and universal ideals of freedom. Nationalism
is more easily applied when it is linked to a single language, religion, and geography, thereby
commonly ignoring or suppressing minority presences. This book has helped the project for
studying the formation of nationalism in India.

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 CHAPTER 3: INDIAN NATIONALISM

Indian nationalism developed as a concept during the Indian independence movement fought
against the colonial British Raj. Scholars note that a national consciousness has always been
present in "India", or more broadly the Indian subcontinent, even if it was not articulated in
modern terms. Indian nationalism is an instance of territorial nationalism, inclusive of all its
people, despite their diverse ethnic and religious backgrounds. It continues to strongly
influence the politics of India and reflects an opposition to the sectarian strands of Hindu
nationalism and Muslim nationalism.

National consciousness in India

India has been unified under many emperors and governments in history. Ancient texts
mention India under emperor Bharata and Akhand Bharat, these regions roughly form the
entities of modern-day greater India. The Mauryan Empire was the first to unite all of India,
and South Asia (including much of Afghanistan). In addition, much of India has also been
unified under a central government by empires, such as the Gupta Empire, Rashtrakuta
Empire, Pala Empire, Mughal Empire, British Indian Empire etc.

India's concept of nationhood is based not merely on territorial extent of its sovereignty.
Nationalistic sentiments and expression encompass that India's ancient history, as the
birthplace of the Indus Valley Civilization and Vedic Civilization, as well as four major
world religions – Hinduism, Buddhism, Jainism and Sikhism. Indian nationalists see India
stretching along these lines across the Indian Subcontinent.

Ages of war and invasion

India today celebrates many kings and queens for combating foreign invasion and
domination, such as Shivaji of the Maratha Empire
Rani Laxmibai of Jhansi, KitturChennamma, MaharanaPratap of Rajputana, Prithviraj
Chauhan and Tipu Sultan who fought the British. The kings of Ancient India, such
as Chandragupta Maurya and Ashoka of the Magadha Empire, are also remembered for their
military genius, notable conquests and remarkable religious tolerance.

Akbar was a Mughal emperor, was known to have a good relationship with the Roman
Catholic Church as well as with his subjects – Hindus, Buddhists, Sikhs and Jains. He forged

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familial and political bonds with Hindu Rajput kings. Although previous Sultans had been
more or less tolerant, Akbar took religious intermingling to new level of exploration.

Colonial-era nationalism

The consolidation of the British East India Company's rule in the Indian subcontinent during
the 18th century brought about socio-economic changes which led to the rise of an
Indian middle class and steadily eroded pre-colonial socio-religious institutions and barriers.
The emerging economic and financial power of Indian business-owners and merchants and
the professional class brought them increasingly into conflict with the British Raj. A rising
political consciousness among the native Indian social elite (including lawyers, doctors,
university graduates, government officials and similar groups) spawned an Indian
identity and fed a growing nationalist sentiment in India in the last decades of the nineteenth
century. The leaders of the Congress advocated dialogue and debate with the Raj
administration to achieve their political goals.

Swadeshi

The controversial 1905 partition of Bengal escalated the growing unrest, stimulating radical
nationalist sentiments and becoming a driving force for Indian revolutionaries. he word
Swadeshi is derived from Sanskrit and is a conjunction of two Sanskrit words ‘Swa’ means
‘self or own’ and ‘desh’ means country. Soswadesh means ‘own country.

Swadeshi Movement was primarily a mass resolution to use only Indian made goods rather
than British made goods. An important aspect of the Swadeshi Movement was the emphasis
placed on ‘Self-Reliance’ or ‘Atmasakti’. Women, Students and the large section of urban
and rural population of Bengal and other parts of India became actively involved in politics
for the first time Bengal National College, inspired by Tagore’s Shantiniketan was set up
with Aurobindo Ghosh as its Principal. Scores of National Schools sprung up all over the
country within a short period. In August 1906 National Council of Education was established.
Swadeshi Movement also brought a cultural revival and fostered the emergence of nationalist
art, literature, music and science. More importantly, conscience of people at large was
awakened and they were prepared to take bold political steps to challenge the British
Supremacy in all spheres.

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The Gandhian era

Mohandas Gandhi pioneered the art of Satyagraha, typified with a strict adherence
to ahimsa (non-violence), and civil disobedience. This permitted common individuals to
engage the British in revolution, without employing violence or other distasteful means.
Gandhi's equally strict adherence to democracy, religious and ethnic equality and
brotherhood, as well as activist rejection of caste-based discrimination and untouchability
united people across these demographic lines for the first time in India's history. The masses
participated in India's independence struggle for the first time, and the membership of the
Congress grew over tens of millions by the 1930s. In addition, Gandhi's victories in
the Champaran and Kheda Satyagraha in 1918–19, gave confidence to a rising younger
generation of Indian nationalists that the British Raj could be defeated.

More than just "Indian"

Indian nationalism is as much a diverse blend of nationalistic sentiments as its people are
ethnically and religiously diverse. Thus the most influential undercurrents are more than
just Indian in nature. The most controversial and emotionally charged fibre in the fabric of
Indian nationalism is religion. Religion forms a major, and in many cases, the central element
of Indian life. Ethnic communities are diverse in terms of linguistics, social traditions and
history across India.

Nationalism and politics

The political identity of the Indian National Congress, India's largest political party and one
which controlled government for over 45 years, is reliant on the connection to Mohandas K.
Gandhi and Jawaharlal Nehru, and the Nehru-Gandhi family which has controlled the
Congress since independence. The Congress Party's fortunes up till the 1970s were single-
handedly propelled by its legacy as the flagship of India's Independence Movement, and the
core platform of the party today evokes that past strongly, considering itself to be the
guardian of India's independence, democracy and unity. Muslims have remained loyal voters
of the Congress Party, seen as defender of Nehruvian secularis m. In contrast, the Bharatiya
Janata Party employs a more aggressively nationalistic expression. The BJP seeks to preserve
and spread the culture of the Hindus, the majority population. It ties nationalism with the
aggressive defence of India's borders and interests against archrivals China and Pakistan, with
the defence of the majority's right to be a majority.

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 CHAPTER 4: THE PRESENT SCENERIO

The nation is different from the state and government. The state can have different forms of
government as it did in the pre- modern past. The use if the term “nation-state” qualifies the
kind of the state. Nationalism is the function of the state. Conceptually, it consolidates the
aspects of the nation like democracy, territory, power and endorses the value systems that
ensure equal rights and justice. The nation is not centrally and directly ruled by dynasty, it is
the representatives of the people who govern it in a democratic system. In other words it is
the people who determine the nation, unfortunately, this definition is not appreciated by the
many who think nationalism is all about shouting slogans and keeping the territory
unchanged.

A few decades ago, there was a much discussion on what goes on making nationalism. The
discussion was varied since nationalism is not tangible object but an abstract concept. The
public historical confrontations today are between secular historians and those who write
about history from the perspective of communal nationalisms. Needless to say, the discipline
of history has moved well beyond this debate, but latter are oblivious of this since they are
grounded in their political agenda.

Till 1950 we had a different definition of nationalism, for that matter even till the time we
were not self-sufficient in food and economic crisis hit us, we were actua lly more focused on
petty problems, we still were struggling to be a proper nation. But with advent of
globalization and opening up of our economy, we have seen a dramatic shift, from being a
collusion of states, we have taken our nation as India on international platforms and hence
today we have moved from internal conflicts to a united population. We are moving towards
the wider definition of nationalism. Coming to rights, indeed without rights and its safeguard
the purpose of state gets forfeited, but it's high time, that with such a huge population and in a
democratic set up we need to move from government to governance, and that needs
patriotism.

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Growth of modern Nationalism in India

1. Understanding of Contradiction in Indian and Colonial Interests:

People came to realise that colonial rule was the major cause of India’s economic
backwardness and that the interests of the Indians involved the interests of all sections and
classes—peasants, artisans, handicraftsmen, workers, intellectuals, the educated and the
capitalists.The nationalist movement arose to take up the challenge of these contradictions
inherent in the character and policies of colonial rule.

2. Political, Administrative and Economic Unification of the Country:

A professional civil service, a unified judiciary and codified civil and criminal laws
throughout the length and breadth of the country imparted a new dimension of political unity
to the hitherto cultural unity that had existed in India for centuries.

The necessities of administrative convenience, considerations of military defence and the

urge for economic penetration and commercial exploitation were the driving forces behind
the planned development of modern means of transport and communication such as railways,
roads, electricity and telegraph.

3. Western Thought and Education:

The introduction of a modern system of education afforded opportunities for assimi lation of
modern western ideas. This, in turn, gave a new direction to Indian political thinking,
although the English system of education had been conceived by the rulers in the interest of
efficient administration.

The English language helped nationalist leaders from different linguistic regions to
communicate with each other. Those among the educated who took up liberal professions
(lawyers, doctors, etc.) often visited England for higher education.

This ever-expanding English educated class formed the middle class intelligentsia who
constituted the nucleus for the newly arising political unrest. It was this section which
provided leadership to the Indian political associations.

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4. Role of Press and Literature:

The second half of the nineteenth century saw an unprecedented growth of Indian- owned
English and vernacular newspapers, despite numerous restrictions imposed on the press by
the colonial rulers from time to time. In 1877, there were about 169 newspapers published in
vernacular languages and their circulation reached the neighbourhood of 1, 00,000.

The press while criticising official policies, on the one hand, urged the people to unite, on the
other. It also helped spread modern ideas of self- government, democracy, civil rights and
industrialisation. The newspapers, journals, pamphlets and nationalist literature helped in the
exchange of political ideas among nationalist leaders from different regions.

5. Rediscovery of India’s Past:

The historical researches by European scholars, such as Max Mueller, Monier Williams, Roth
and Sassoon, and by Indian scholars such as R.G. Bhandarkar, R.L. Mitra and later Swami
Vivekananda, created an entirely new picture of India’s past.

The theory put forward by European scholars, that the Indo-Aryans belonged to the same
ethnic group from which other nations of Europe had evolved, gave a psychological boost to
the educated Indians. The self-respect and confidence so gained helped the nationalists to
demolish colonial myths that India had a long history of servility to foreign rulers.

6. Progressive Character of Socio-religious Reform Movements:

These reform movements sought to remove social evils which divided the Indian society; this
had the effect of bringing different sections together, and proved to be an important factor in
the growth of Indian nationalism.

7. Rise of Middle Class Intelligentsia:

British administrative and economic innovations gave rise to a new urban middle class in
towns. According to Percival Spear, “The new middle class was a well- integrated all-India
class with varied background but a common foreground of knowledge, ideas and values….It
was a minority of Indian society, but a dynamic minority….It had a sense of unity of purpose
and of hope.”

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This class, prominent because of its education, new position and its close ties with the ruling
class, came to the forefront. The leadership to the Indian National Congress in all its stages of
growth was provided by this class.

8. Impact of Contemporary Movements Worldwide:

Rise of a number of nations on the ruins of Spanish and Portuguese empires in South
America, and the national liberation movements of Greece and Italy in general and of Ireland
in particular deeply influenced the nationalist ranks.

Today’s India as a nation to grow, prosper & flourish needs a 'civic nationalism' based on
universal values like tolerance, mutual respect & mutual reliance in combination with
'economic nationalism' respecting multilateralism to lift the people out of poverty, to address
economic inequality & to grow sustainably in long term.

1. Civic/non-ethnic nationalism which was driving force in our freedom struggle has
unparalleled contribution to India-as a 'nation in making' project based on democratic,
heterogeneous& inclusive principles.
2. Nationalism is on revival all over the globe but to distinguish it from civic/
constructive nationalism this revival trend is ba sed on more evil racist, religious,
loyalist forms of nationalism.
3. Religious nationalism relevant in today’s Indian context which may disturb the social
cohesion is bad for economic growth because stable & long term economic growth
cannot be achieved apart from civic & social solidarity.
4. Consolidation of religious nationalism in India makes non-Hindus 2nd class citizen
thereby cutting them from economic growth project.

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 CHAPTER 5: IMPACT OF NATIONALISM IN GLOBALIZING
WORLD

The 21st Century has been one of the mystique and wonders from innovations in techno logy,
medicine, and travel. Throughout 21st Century, we have consistently heard about how the
world has become smaller and more globalized. Globalization has affected our lives in many
different areas. Whether it be the access to the increased global transference of goods, ease of
communication from one corner of the globe to another, or going to a global college,
globalization is everywhere. However, an affected area by globalization bit often overlooked
is nationalism. Briefly stated, nationalism is the idea of taking pride in one’s country on the
basis of historical and cultural ties to a specific nation, usually a person’s native country.
Globalization has largely made the world less pluralistic, and the homogenization of the
world community as a whole has had large effects on 21 st Century nationalism.

The relationship between nationalism and globalization is important to analyse because of the
varying options held in regards to what effect globalization has on the nationalism, moreover
it allows for easier analysis of common civic trends occurring due to the relationship between
nationalism and globalization.

Much like nationalism, the history of globalization has much older roots theoretically. It
could be argued that globalization started with the first migration of people out of Africa
hundreds of thousands of years ago. However, the scholarly consensus is widespread in
regards to a single point of time when globalization started.

Industrialization and the solidification of a global market started the increase of foreign
investment by capital-rich countries into smaller poorer nations that were usually colonies of
the country making the investment. This was especially evident in the early 20th century,
which was accompanied by the migration between colonies and their parent countries.
Migration patterns resulting from global capital investment required infrastructure to be
created in territories and the host countries to support migration flows. This helped circulate
wealth globally and gave more nations in the world overall prosperity. The increased flow of
capital, people, and customs due to globalization has placed the role of contemporary
nationalism into question. Globalization and nationalism have had a largely contemporary rift
due to the magnitude to which globalization has occurred in the 21st century. Such increased
globalization has put into question what it means to be a citizen of a state, whether or not

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state’s still have distinctive cultures, and to what extent distinct national borders are still
relevant.

As a result of globalization and the increased flow of people into different countries, overall
singularly identifiable cultural identities have been eroded.. From this, the former cultural
plurality between differing states has largely diminished, resulting in the notion of a single
global cultural community identified as a collection of various cultures amalgamating into a
single world culture. Although the influx of people has eroded national culture, it has also
enabled the flow of technology that has allowed people to explore other cultures.

Moreover, nationalism has further been depleted by the advent and increasing influence of
supranational organizations in the international system. Also, the introduction of
Transnational Corporations and their influence within the global market has negatively
affected nationalism. Increases in the imports and exports of goods from around the world,
much like technology, allows for people to increasingly be exposed to other cultures. There
tends to become an increased normality in the use of products created outside of a person’s
nation, making it seem more customary to use culture’s products rather than their own. As a
result, people are less tied to different facets of their culture that play into a sense of
nationalism.

An increase in world cultural homogeneity has synchronously worked to both diminish

nationalism and to increase it. Citizens have made it a point to preser ve their cultural heritage
and have an increasing backlash against multiculturalism within their states. Multiculturalism
has increasingly become perceived as a negative rather than a positive component in society.

Globalization and its relationship with nationalism are complex. It is likely that the future
will bring increased globalization with more innovations technologically, which will result in
an even more intricate relationship between a citizen’s feeling of connection to their nation-
state and the evolving global society around them. The nation-state will likely continue to be
the main political entity in the international system, as it has been shown nationalism is
already beginning to rise, and even more extreme feelings of nationalism will likely occur. If
this is the case, as we have seen currently, immigration sentiments will continue to worsen as
a result of this neo-nationalism. However, we as a species must fight our instincts in this
regard and learn to accept one another independent of abs tract belongings to a certain
territory.

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 CHAPTER 6: LEGAL ANALYSIS

Over thousands of years, human civilization organized itself first in the form of family, then
as religion and today we are organised as nation-state. The Bhartiya concept of Rashtra could
be considered a parallel to the western term ‘Nation’ but both are also different on several
counts. The primary difference between the two stems from the fact that Rashtra is more of
ethic-spiritual concept while nation is a cultural concept.

Many leaders like Sri Arvindo, Gandhi, Nehru, Tilak, Tagore delved into the ideas of Indian
Nation and Nationalism. Their ideas are either spiritual, meta-physical or statist.

Dr. Bhim Rao Ambedkar’s ideas and reflections on Nationalism:

He is most of the celebrated Indian leader, thinker and social philosopher of the 21 st century
who contributed in the 20th century. Over the years, ideas of Ambedkar have become stronger
and more relevant to the contemporary discourse.

Ambedkar elaborated on the idea of Nationality and Nationalism in his book Pakistan or the
Partition of India. He describes Nationality as ‘a consciousness of kind, awareness of the
existence of that tie of kinship’ and Nationalism as ‘the desire for a separate national
existence for those who are bound by this tie of kinship’. It is true that there cannot be
nationalism without the feeling of nationality. But it is important to bear in mind that the
converse is not always true. The feeling of nationality may bear present and yet the feeling of
nationalism may be quiet absent. According to Ambedkar, for nationality to flame into
nationalism two conditions must exist. First, there must arise the will to live in a nation.
Nationalism is the dynamic expression of that desire. Secondly, there must be a territory
which nationalism could occupy and make it a state, as well as a cultural home of the nation.
Without such a territory, nationalism would be a soul as it were wandering in search of a
body in which to begin life dies without finding any.

Ambedkar had immense faith in the bright future and evolution of this country. Even when he
spoke of attaining freedom for India, his ultimate goal was to unite the people. He said ,” so
far as the ultimate goal is concerned , none of us have any apprehens ion or doubt. Our
difficulty was not about the ultimate thing but how to unite the heterogeneous mass that we
are today to take a decision in common and march in a co-operative way on that road, which
is bound to lead us to unity”.

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Ambedkar was not against the idea of nationalism but against the Congress’s version which
entailed freedom of India from British colonialism but not from Brahminical imperialism
under which millions of Scheduled Castes had been yoked for hundreds of years. It was
Ambedkar’s political challenge which compelled the Congress to appreciate the national
significance of the problem of castes and to adopt measures which significantly contributed
towards broadening and strengthening the social base of Indian Nationalism.

Justice K. Ramaswamy while probing into the legal aspects of nationalism likes to call
Ambedkar a true democrat, a nationalist to the core and a patriot of highest order.

Rabindranath Tagore, the composer of the Indian national anthem, had even more radical
views on nationalism. He believed that a fervent love for the nation represented a conviction
of national superiority and a glorification of cultural heritage , which in turn was used to
justify narrow- minded national interest. Writing in 1917, Tagore said, “when this
organisation of politics and commerce, whose other name is the Nation, becomes all powerful
at the cost of the harmony of higher social life... then it is an evil day for humanity.” He thus
cautioned against such an exclusionary and self-aggrandizing form of nationalism that was
based on a hate culture against an imagined or actual other, who was viewed as the enemy.

The Constitution of India

The Constitution of India is the supreme law of India. The document lays down the
framework demarcating fundamental political code, structure, procedures, powers and duties
of government institutions and sets out fundamental rights, directive principles and the duties
of citizens. It the longest written constitution of any country on earth. B. R. Ambedkar,
chairman of the drafting committee, is widely considered to be its chief architect.

It imparts constitutional supremacy (not parliamentary supremacy, since it was created by a

constituent assembly rather than Parliament), and was adopted by its people with a
declaration in its preamble. It was adopted by the Constituent Assembly of India on 26
November 1949, and became effective on 26 January 1950. The constitution replaced the
Government of India Act, 1935 as the country's fundamental governing document, and the
Dominion of India became the Republic of India. To ensure constitutional autonomy, its
framers repealed prior acts of the British parliament in Ar ticle 395. India celebrates its
Constitution on 26 January as Republic Day.

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The Constitution declares India a sovereign, socialist, secular, democratic republic, assuring
its citizens justice, equality and liberty, and endeavours to promote fraternity.

The Fundamental Duties - Part IVA

The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment
in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by
the government earlier that year. Originally ten in number, the Fundamental Duties were
increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or
guardian to ensure that their child or ward was provided opportunities for education between
the ages of six and fourteen years. The other Fundamental Duties obligate all citizens to
respect the national symbols of India, including the Constitution, to cherish its heritage,
preserve its composite culture and assist in its defence. They also obligate all Indians to
promote the spirit of common brotherhood, protect the environment and public property,
develop scientific temper, abjure violence, and strive towards excelle nce in all spheres of life.
In case of violation of fundamental duties enshrined in the constitution by a citizen, it
amounts to contempt of the constitution which is punishable under Prevention of Insults to
National Honour Act, 1971. Supreme court has ruled that these fundamental duties can also
help the court to decide the constitutionality of a law passed by the legislature. There is
reference to such duties in international instruments such as the Universal Declaration of
Human Rights and International Covenant on Civil and Political Rights, and Article 51A
brings the Indian Constitution into conformity with these treaties.

The Fundamental Duties noted in the constitution are as follows:

“It shall be the duty of every citizen of India —

To value and preserve the rich heritage of our composite culture;

To protect and improve the natural environment including forests, lakes, rivers, wildlife and
to have compassion for living creatures;

To develop the scientific temper, humanism and the spirit of inquiry and reform;

To safeguard public property and to abjure violence;

Who is a parent or guardian, to provide opportunities for education to his child, or as the
case may be, ward between the age of six to fourteen years.

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To abide by the Constitution and respect it's ideals and institutions, the National Flag and the
National Anthem;

To cherish and follow the noble ideals which inspired our national struggle for freedom;

To uphold and protect the sovereignty, unity and integrity of India;”

Fundamental Duties are like some noble advice of which some are civic duties and others are
moral duties. They are not legally binding upon the citizens and even the courts cannot
enforce them. So, Fundamental Duties are not enforceable by the courts of our country.
Therefore people obey these duties on moral obligation for welfare of the people.

Though there is no provision in the Constitution for direct enforcement of any of these duties
nor for any sanction to prevent their violation, yet some Fundamental Duties are enforceable
by the courts of the country. Duties like abide by the Constitution, respect the National Flag
and the National Anthem, to defend the country and render National service when called
upon to do so and safeguard public property etc. fall in this category and the courts can
enforce them if it find reasonable relation with laws of the country.

One of the biggest propellers of the political fiction was Granville Austin, that inimitable
scholar from Washington DC , whose work “ The Indian Constitution : Cornerstone of a
Nation “ has had such a wide ranging influence on academics and the Judges of the Supreme
Court alike. For the first time after the framing of the Constitution , Austin systematically laid
out the organic and cohensive unity of the Indian Constitution. He identified that the main
axis around which the Constitution revolved was that of social revolution , and along with it
the ideas of national unity and stability were considered important as well.

In Austin’s view , the framers of the Constitution were able to draft the Constitution that was
both a declaration of social intent an intricate administrative blue- print because of the
extraordinary sense of unity among the members. Constitution making thus became an
exercise in nation building and the Constitution itself embodiment of the nation. Till date
there has been no viable alternative thesis that has been advanced that could eclipse Austin.
Such is the powerful hold of the conflation between nationalism and constitutionalism.

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 CHAPTER 7: ROLE OF JUDICIARY

The judiciary (also known as the judicial system or court system) is the system of courts that
interprets and applies the law in the name of the state.The judiciary also provides a
mechanism for the resolution of disputes.

Under the doctrine of the separation of powers, the judiciary generally does not make law
(that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law
(which is the responsibility of the executive), but rather interprets law and applies it to the
facts of each case.This branch of the state is often tasked with ensuring equal justice under
law.

CASE LAWS:

1. Shyam Narayan Chouksey vs Union Of India on 9 January, 2018 [ WRIT

PETITION (CIVIL) NO.855 OF 2016]

The petitioner, a public spirited person, had approached the Supreme Court under Article
32 of the Constitution of India for issue of a writ of mandamus or any other appropriate writ,
order or direction commanding the respondents to take appropriate steps for inculcating in the
public a proper sense for paying due respect to the National Anthem; to issue a writ, order or
direction as to what is required to be done and not to be done when the National Signature
Not Verified Anthem is being played or sung;

Having heard the matter as an interim measure, it was directed that the following directions
shall be scrupulously followed:-

(a) National Anthem or a part of it shall not be printed on any object and also never be
displayed in such a manner at such places which may be disgraceful to its status and
tantamount to disrespect. It is because when the National Anthem is sung, the concept of
protocol associated with it has its inherent roots in National identity, National integrity and
Constitutional Patriotism.

(b) 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.

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(c) 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.

There is no shadow of doubt that one is compelled to show respect whenever and wherever
the National Anthem is played. It is vital of the Nation and fundamental grammar of
belonging to a nation state. However, the prescription of the place or occasion has to be made
by the executive keeping in view the concept of fundamental duties provided under
the Constitution and the law.

It further lays down that there is no objection to the singing of the National Anthem
accompanied by mass singing so long as it is done with due respect as a salutation to t he
motherland and maintenance of the proper decorum.

Thus, three aspects are obvious:

 the National Anthem is not only to be respected, but it is a respect as a salutation to

the motherland;
 the list of occasions cannot be exhaustively stated; and
 proper decorum has to be maintained when the National Anthem is played or sung.

The Judgement :

The order passed on 30th November, 2016, is modified to the extent that playing of the
National Anthem prior to the screening of feature films in cinema halls is not mandatory, but
optional or directory. Citizens or persons are bound to show respect as required under
executive orders relating to the National Anthem of India and the prevailing law, whenever it
is played or sung on specified occasions. The exemption granted to disabled persons shall
remain in force till the final decision of the competent authority with regard to each occasion
whenever the National Anthem is played or sung.

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 2. Union Of India vs Naveen Jindal & Anr on 23 January, 2004 Appeal (civil) 2920
of 1996

This case answers an important question that arises for consideration is whether the right to
fly the National Flag by Indian citizen is a fundamental right within the meaning of Article
19(1)(a) of the Constitution of India.

Naveen Jindal, the respondent herein, is a Joint Managing Director of a public limited
company incorporated under the Companies Act. He being in charge of the factory of the said
Company situated at Raigarh in Madhya Pradesh was flying National Flag at the office
premises of his factory. He was not allowed to do so by the Government officials on the
ground that the same is impermissible under the Flag Code of India.

Questioning the said action, the respondent filed a writ petition before the High Court, inter
alia, on the ground that no law could prohibit flying of National Flag by Indian citizens.
Flying of National Flag with respect and dignity being a fundamental right, t he Flag Code
which contains only executive instructions of the Government of India and, thus, being not a
law, cannot be considered to have imposed reasonable restrictions in respect thereof within
the meaning of clause (2) of Article 19 of the Constitution of India.

Due to the various restrictions imposed on the use and display of the National Flag, an
impression has developed among people as if the national Flag is meant for Government use
only and the people at large are permitted unrestricted display of National Flag only on
certain limited occasions. This has probably created a feeling of dissatisfaction among certain
sections of people of India.

The Court have hope and trust that the Parliament, keeping in view the importance of the
question involved in this matter, shall make a suitable enactment for the aforementioned
purpose. For the aforesaid reason, the Court held that-

(i) Right to fly the National Flag freely with respect and dignity is a fundamental
right of a citizen within the meaning of Article 19(1) (a) of the Constitution of
India being an expression and manifestation of his allegiance and feelings and
sentiments of pride for the nation;

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 (ii) The fundamental right to fly National Flag is not an absolute right but a qualified
one being subject to reasonable restrictions under clause 2 of Article 19 of the
Constitution of India;
(iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the
Prevention of Insults to National Honour Act, 1971 regulate the use of the
National Flag ;
(iv) The Flag Code although is not a law within the meaning of Article 13(3)(a) of the
Constitution of India for the purpose of clause (2) of Article 19 thereof, it would
not restrictively regulate the free exercise of the right of flying the national flag.
However, the Flag Code to the extent it provides for preserving respect and
dignity of the National Flag, the same deserves to be followed.
(v) For the purpose of interpretation of the constitutional scheme and for the purpose
of maintaining a balance between the fundamental/legal rights of a citizen vis-`-
vis, the regulatory measures/restrictions, both Parts IV and IVA of the
Constitution of India can be taken recourse to.

3. Bijoe Emmanuel & Ors vs State Of Kerala & Ors on 11 August, 1986 1987 AIR
748, 1986 SCR (3) 518, (1986) 3 SCC 619

The three child-appellants, Bijoe. Binu Mol and Bindu Emmanuel, are the faithful of
Jehovah's Witnesses. They attend school. Daily, during the morning Assembly, w hen the
National Anthem 'Jana Gana Mana' is sung, they stand respectfully but they do not sing. They
do not sing because, according to them, it is against the tenets of their religious faith-not the
words or the thoughts of the Anthem but the singing of it. This they and before them their
elder sisters who attended the same school earlier have done all these several years. No one
bothered, No one worried. No one thought it disrespectful or unpatriotic. The children were
left in peace and to their beliefs. That was until July, 1985, when some patriotic gentleman
took notice. The gentleman thought it was unpatriotic of the children not to sing the National
Anthem. He happened to be a Member of the Legislative Assembly. So, he put a question in
the Assembly.

The Judges were told that the Commission reported that the children are 'law- abiding' and
that they showed no disrespect to the National Anthe m. Indeed it is nobody's case and that the
children are other than well-behaved or that they have ever behaved disrespectfully when the
National Anthem was sung. They have always stood up in respectful silence. So, under the
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instructions of Deputy Inspector of Schools, the Head Mistress expelled the children from
the school from July 26, 1985. The father of the children made representations requesting that
his children may be permitted to attend the school pending orders from the Government. The
Head Mistress expressed her helplessness in the matter.

Finally the children filed a Writ Petition in the High Court seeking an order restraining the
authorities from preventing them from attending School. First a learned single judge and then
a Division Bench rejected the prayer of the children. They have now filed Special Leave
under Art. 136 of the Constitution.

Article 19(1)(a) of the Constitution guarantees to all citizens freedom of speech and
expression, but Article 19(2) provides that nothing in Art. 19(1)(a) shall prevent a State from
making any law, in so far as such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to an offence. Art.
25(1) guarantees to all persons freedom of conscience and the right freely to profess, practise
and propogate religion, subject to order, morality and health and to the other provisions of
Part III of the Constitution. The Court had to examine whether the ban imposed by the Kerala
education authorities against silence when the National Anthem is sung on pain of expulsion
from the school is consistent with the rights guaranteed by Arts. 19(1)(a) and 25 of the
Constitution.

The Supreme Court observed that there is no provisions of law which obliges anyone to sing
the National Anthem nor do they think that it is disrespectful to the National Anthem if a
person who stands up respectfully when the National Anthe m is sung does not join the
singing. It is true Art. 51-A(a) of the Constitution enjoins a duty on every citizen of India "to
abide by the Constitution and respect its ideals and institutions, the National Flag and the
National Anthem." 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.

Held

In the present case, the Court held that the expulsion of the three children from the school for
the reason that because of their conscientiously held religious faith, they do not join the

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singing of the national anthem in the morning assembly though they do stand up respectfully
when the anthem is sung , is a violation of their fundame ntal right to freedom of
conscience and freely to profess, practice and propagate religion.

Therefore the Court found that the Fundamental Rights of the appellants under Art.
19(1)(a) and 25(1) have been infringed and they are entitled to be protected. They allowed the
appeal, set aside the judgment of the High Court and directed the respondent authorities to re-
admit the children into the school, to permit them to pursue their studies without hindrance
and to facilitate the pursuit of their studies by giving them the necessary facilities.

Comments:

The question is not whether a particular religious belief or practice appeals to our reason or
sentiment but whether the belief is genuinely and conscientiously held as part of the
profession or practice of religion. Personal views and reactions are irrelevant. If the belief is
genuinely and thoroughly held it attracts the protection of Art. 25 but subject, of course, to
the inhibitions contained therein. In the instant case, what the petitioners truly and
conscientiously believe is not in doubt. They do not hold their beliefs idly and their conduct
is not the outcome of any perversity. Even though we have the Fundamental duty to respect
and honour our national flag and National Anthem but, not singing National Anthem whe n
played does not mean that it is leading to the promotion of anti- nationalism but rather
respecting it even though without singing it is the way forward for exhibition of nationalism
in the modern society. Similarly the behaviour of dumb people who even though cannot sing
national Anthem but they stand and respect the National Anthem whenever played.
Nationalism in the similar way may not be displayed or showed by the people but rather the
love for nation remains unsung in the hearts of the people.

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 CHAPTER 8: CONCLUSION

Evaluation of Nationalism:

Whether nationalism is good or bad, blessing or curse depends in the way people claim to be
nationalist and implement their principles. Healthy nationalism is a blessing to mankind as it
is committed to peace and freedom and is ready to make concessions to internationalism.

Remedial measures:

Remedial measures will have to be adopted to curb fissiparous tendencies and to reinforce
national unification. Some of the remedial measures are as follows:

1. The leaders of the nation should by their sincerity and commitment set good
example for the people in developing centripetal tendencies. They should neither
by their acts or words written or spoken should betray any fissiparous symptoms.
2. Periodical meeting of the Central and State leaders should be held and steps
should be uniformly be taken to strengthen national unity.
3. True secularism should be practised and religious tolerance must be encouraged
4. Subjects of the state must extend full co-operation to their leaders in fighting
against the danger of regionalism, communalism, casteism and in developing
national politics in place of village , communal and caste politics.

Nationalism- It can make us or break us

Love for once country can never be a hindrance to growth and prosperity. The thing which
matters is the way this emotion of nationalism is vented out. If it is vented at realizing our
fundamental duty of excellence in all spheres of individual and collect ive activity, then India
can become the next superpower. If it is used as violence against dissenting voice, then it can
even destroy our country. So we as Indians and our Government should strive to provide the
correct ventilation valve to the youths of this country, so that our country may emerge as a
model for the world.

The principle of what is 'nation' is written in constitution. Devotion towards that principle is
called nationalism. Nationalism here is much broader and higher than any identity of caste,

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religion, group etc. India often mentioned in world reports as third world country, nation
where people need to be taught about public sanitation etc. These problems cannot be solved
by government initiatives alone. The lack of love towards ones country and care towards
people is what breeds corruption. If nationalism is present in right proportions corruption can
be checked at individual level itself.

Unlike USA, Canada Indian democracy is surrounded by countries who all do not share
friendly relations with us, some constantly area at proxy war with the Indian state. It is not
possible to sustain these attacks and maintain a working democracy without the emotional
attachment towards country. India is diverse country with diversity across language,
ethnicity, rationality and many such dimensions.

To keep a unified India it is very much necessary that we keep asserting upon the identity that
unifies all of us. However it is very much possible that idea of 'nationalism' could be defined
in very narrow terms and lumped elements in the society slowly pushing country towards
fundamentalism. Learning from history care must be taken that the idea of nationalism in
India always remains progressive and inclusive. It even gets worse when the people do not
understand the real values of our country, and take actions based on what they think is right
and their thought process is mostly based on revenge, financial benefit or to retain the power
in certain area.

Our nation is a by-product of non-violence and anti-colonial principles that were actually
applied in real world to gain the independence of our people. Our constitution and judiciary is
created after keeping the Civil liberties at the core. Our cardinal leaders were the champions
in fighting for Civil liberties.

Having said that, I would not refrain from the fact that our country will do everything in its
capacity to maintain the integrity of the nation because that's the part of our constitution. We
have even taken military actions to save the unity of our states. One such example is
"Operation Blue Star", which was counter act to stop the terrorists from curtailing major part
of Punjab from India's control, and the current example is the perennial controversial
circumstance of "Kashmir". One would easily jump o n conclusion after seeing these
examples that India is just trying to save its land from separatists, and that's what Nationalism
means - "Saving the land" but that's a wrong interpretation, because it's much more complex
situation from both security and political perspective, and that's the reason we all should try
our level best to understand these intricacies of our country's policies.

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 CHAPTER 9: A WAY FORWARD

The transition of India from a nation of villages – which bred a raw sense of unity and
patriotism – to one of expanding urban spaces, has created confusion in identities of migrant
populations. On the one hand, such populations prioritise their struggle for survival over their
nationalistic feelings, while on the other, political leaders pretend to protect such vulnerable
groups by trying to induce a sense of belongingness and unity. The identities of peoples are
blurred, the emotional connect with the nation has deteriorated, yet our scattered and broken
sense of nationalism is competing with that in other countries in a globalised world today.
The failure in real assimilation of such migrants and minorities in the nationalism discourse
has resulted in a dark era of insecurity, exclusion and violence in India. There is an urgent
need to interpret the Constitution creatively – so that socio-economic equality can be ensured
as a means to achieving political equality, and a national/universal humanity can be
achieved.

Learning from history, care must be taken that the idea of nationalism in India always
remains progressive and inclusive. The values of patriotism has to be inculcated since
childhood itself. The clear distinction between nationalism & other wrong separationist
tendencies shall be put forward by the government. Condemnation of atrocities committed in
the name of nationalism has to be done. India will achieve growth & prosperity only when
the rising nationalist feelings are focused on social & economic integration for people from
all backgrounds, when we learn to practice nationalism beyond 15th August & 26th January.

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 BIBLIOGRAPHY

1. Romila Thapar, A.G.Noorani, Sadanand Menon ; On Nationalism; Aleph Book

Company; ISBN No.- 978-93-83064-11-3
2. B. K. Gokhale; Political Science – Theory and Governmental Machinery ; Himalaya
Publishing house;
3. Adlai Erwin; Nationalism in a Globalized Era; Westminster Journal for Global
Progress; published on Mar 31, 2017
4. Krishnadas Rajagopa ; SC modifies order, says playing of national anthem in cinema
halls is not mandatory; published on NEW DELHI, JANUARY 09, 2018; ISSN no.
22403095
5. Gangeya Mukherji; An Alternative Idea of India: Tagore and Vivekananda ; Journal
of Hindu Studies ; ISBN: 978-0-415-67693-9
6. https://www.boomlive.in/does-the- indian-constitution-speak-for-a-nation/
7. https://www.livelaw.in/free-speech-nationalism- sedition-justice-ap-shah- m-n-roy-
memorial- lecture/
8. https://www.thehindu.com/todays-paper/tp-opinion/What- it- means-to-be-
independent/article14570903.ece
9. www.academicsjournal.com/download/675/2-5-200-133
10. https://www.thehindu.com/news/national/sc- modifies-order-says- national-anthem-
not-mandatory/article22403095.ece

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