National song choice is State’s call, penal consequences open to scrutiny: SC

The Supreme Court on Tuesday declined to examine whether Vande Mataram should be recognised as the National Song or whether its official rendition should comprise two or six stanzas, saying the choice of national symbols and the aspirations associated with them fall within the remit of an elected government, even as it agreed to examine whether that recognition can carry criminal consequences for a citizen who, on grounds of conscience or religion, chooses not to sing it.

A bench, comprising Chief Justice of India Surya Kant and justices Joymalya Bagchi and V Mohana made it clear that its scrutiny would centre on the penal consequences attached to the 2026 amendment to the Prevention of Insults to National Honour Act, which extended criminal protection under Section 3 to the “National Song”, alongside the National Anthem.

The bench also indicated that the law laid down by the Supreme Court in Bijoe Emmanuel Vs State of Kerala (1986) would continue to govern the field. “Nobody who feels an infraction of Article 25, 26 rights would be subjected to penal consequences,” said the bench, adding that “for a conscientious objector, not to recite one or all the stanzas of the national song is not going to subject himself to criminal prosecution.”

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The observations came on a petition filed by Carnatic vocalist, author and Ramon Magsaysay Award recipient TM Krishna, who has challenged the constitutional validity of the amendment as well as Ministry of Home Affairs directions prescribing the complete six-stanza version of Vande Mataram for specified governmental, ceremonial and cultural occasions.

The amendment substituted Section 3 of the 1971 Act to provide that anyone who intentionally prevents the singing of the National Anthem or National Song, or causes disturbance to an assembly engaged in such singing, can be punished with imprisonment of up to three years, or fine, or both.

Krishna’s challenge invokes alleged breach of fundamental rights relating to equality, religious freedom, free speech and right against discrimination, arguing that the amendment and the MHA directions effectively compel citizens to participate in the rendition of all six stanzas, including portions that expressly invoke Hindu deities.

But the bench drew a clear line between the State’s choice of a national symbol and the State’s power to enforce participation in it through criminal law. “It is not the remit of the court to second-guess what are the national sentiments and aspirations associated with Vande Mataram. It is for the State,” said the bench.

At the same time, it made clear that such State recognition could not override a genuine conscientious objection. “To the extent of penal consequences the Act provides, (that) can be gone into,” said the bench, while observing that “in a democracy, State is best placed to give aspiration to the national song. But no conscientious objector can be subjected to penal consequences.”

The bench also indicated that it would not enter into a religious adjudication over the lyrics. “From the very beginning of this hearing, we have said we are examining no religion. We are confining only to the legal issue under the Constitution,” it said.

The court’s reference to Bijoe Emmanuel is significant. In that 1986 judgment, the Supreme Court protected three schoolchildren belonging to the Jehovah’s Witnesses faith who had refused to sing the National Anthem because their religious beliefs prohibited them from participating in such singing. The children nevertheless stood respectfully when the anthem was played. The Supreme Court held that their refusal to sing, based on a genuine and conscientious religious belief, did not amount to disrespect to the National Anthem and could not be made a ground for their expulsion.

It is this distinction between respect for a national symbol and compelled participation in its expression that the present bench indicated could apply to the amended law covering Vande Mataram.

The issue arose when senior advocate S Muralidhar, appearing for Krishna, argued that the amendment had introduced the expression “National Song” into a penal statute without defining what constituted the National Song or which version of Vande Mataram was covered.

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Muralidhar argued that the MHA directions prescribing all six stanzas could not be converted into the basis for criminal prosecution, particularly when the original 1971 law had made no reference to a National Song.

The bench was not persuaded to examine the larger question at this stage. It noted that “by customs and usage, the National Song has always been mentioned and understood as Vande Mataram”, while distinguishing that question from whether a citizen could be prosecuted for refusing to sing it.

Muralidhar argued that for nearly eight decades Vande Mataram had generally been treated as comprising its opening two stanzas for official purposes and questioned the move to prescribe all six stanzas with penal consequences.

“So for the first time, after almost 80 years, they are trying to tell us it’s not two stanzas,” submitted Muralidhar, arguing that national symbols in a democracy should evolve through public consensus rather than compulsion.

The bench, however, indicated that it was not the court’s role to determine the content of national sentiment. “Perhaps this stage is the best to articulate national aspirations,” it observed, while making clear that the criminal-law aspect remained open to scrutiny.

The petition contends that the last four stanzas of the six-stanza version contain references to Durga, Lakshmi and Saraswati and that compulsory rendition would infringe the freedom of conscience and religion of those who object to such devotional expression. It further alleges that the State action has a disparate impact on non-Hindu citizens and violates the constitutional guarantee of secularism.

The petition also challenges the MHA directions as executive instructions lacking an independent statutory basis, arguing that an office memorandum cannot itself create criminal liability or restrict fundamental rights.

During the hearing, Muralidhar and Solicitor General Tushar Mehta also sparred over the latter’s reference to “Naxalites” while defending Parliament’s legislative authority. Muralidhar objected strongly to the expression and sought its withdrawal, saying it was inappropriate for a law officer to use such language during a live hearing.

The exchange later widened into a discussion on constitutional institutions and extra-constitutional methods. The bench stressed the importance of constitutional courts as institutions where even persons accused of serious offences retain legal rights, observing that the credibility of the constitutional system rests on adherence to its processes.

The bench ultimately directed that the petition be furnished to the solicitor general and gave the Centre two weeks to file its response. The matter will be considered further thereafter.