Right to Refuse the National Song

Source: The Hindu 

Introduction 

Recently, the Supreme Court, observed that a democratically elected government may decide the scope and length of the National Song, but it cannot violate individual and collective religious freedoms or subject conscientious objectors to penal consequences for refusing to sing all or some stanzas of Vande Mataram.  

• A three-judge Bench headed by Chief Justice of India Surya Kant, and including Justice Joymalya Bagchi, sought the Union Government's response to a petition filed by Carnatic vocalist T.M. Krishna challenging the Prevention of Insults to National Honour (Amendment) Act, 2026, along with related administrative directions of the Union Home Ministry. 

What is the Challenge Before the Court? 

• The petition challenges the Prevention of Insults to National Honour (Amendment) Act, 2026, read with administrative directions issued by the Union Home Ministry in January and a subsequent circular in July. 
• According to the petitioner, the amended law and executive orders compel the playing and mass singing of all six stanzas of Vande Mataram before the National Anthem at public functions. 
• Non-compliance is punishable with imprisonment of up to three years, a fine, or both. 
• The petitioner argued that the amended Section 3 of the Act does more than regulate national protocol; it prescribes a uniform code of conduct for public functions and compels a ceremony of assent to a symbol whose last four stanzas are devotional, deity-invoking and non-secular. 
• The petition contended that the scheme violates fundamental rights guaranteed under the Constitution and offends the basic feature of secularism. 

What Are the Petitioner's Key Arguments? 

• Non-secular stanzas: Stanzas three to six of Vande Mataram were described as expressly devotional, deity-invoking and non-secular. 
• Compelled orthodoxy: The petition argued that mandating all six stanzas under penal sanction turns a contested historical symbol into a compelled orthodoxy. 
• Majoritarian signalling: Though formally neutral, the measure was said to be substantively coded, signalling majoritarian religious alignment and imposing expressive subordination on believing Muslims and other conscientious objectors. 
• No statutory definition: Senior advocate S. Muralidhar, appearing with advocate Prasanna S. for the petitioner, submitted that the 2026 Act does not even define what a "National Song" is. 
• Flawed law-making process: Dr. Muralidhar argued that defining the National Song required broader public debate and consensus, and could not be imposed on citizens under threat of penal action. 
• Ungazetted office memorandum: He further pointed out that the Home Ministry's office memorandum was never gazetted, and so could not support a penal provision of law. 

What did the Supreme Court Observe? 

• State's power vs. individual freedom: Justice Bagchi observed that the National Song itself is not in dispute, and it is for the democratically elected State to decide whether it should be two stanzas or four. However, nobody can infringe Articles 25 and 26, and a conscientious objector must be free to recite one or all stanzas without facing criminal prosecution. 
• Bijoe Emmanuel still governs: Justice Bagchi said the 1986 precedent in Bijoe Emmanuel v. State of Kerala, which upheld religious freedom, constitutional tolerance and silent objection, still holds true and, as the law of the land, would govern the 2026 amendment. 
• Religious flavour and secularism: In the initial moments of the hearing, Justice Bagchi remarked that religious flavour, or homage to a particular deity, may not necessarily undermine secularism in a constitutional democracy. He cited the American Constitution as a strong example of positive secularism, while noting that the American National Anthem uses the word "God". 
• Judicial restraint on national aspirations: Justice Bagchi noted that courts are often reluctant to articulate national aspirations or second-guess nationalism, but said the Bench would definitely examine whether the 2026 amendment and the government circulars choke the rights of conscientious objectors. 
• History of the Song: Chief Justice Surya Kant remarked that anyone who has taken the trouble to read history would know the National Song. 

What was the Government's Stand? 

• Solicitor-General Tushar Mehta, present in the courtroom, intervened to point out that Vande Mataram has been the National Song since pre-Independence days. 
• Justice Bagchi responded that customs and usages could also be relied upon to reach the same conclusion. 
• Mr. Mehta urged that the National Song should not be dragged into sensationalism. Justice Bagchi replied that the Bench was not there to create sensations, but to ensure that the law laid down in Bijoe Emmanuel governs the 2026 amendment. 
• Objecting to Dr. Muralidhar's criticism of the law-making process, the Solicitor-General said law-making follows the Constitution and not the ideas of Naxalites. Dr. Muralidhar strongly objected, calling the remark offensive and unbecoming of the office of a law officer of the government. 

What is the Bijoe Emmanuel Judgment? 

• Bijoe Emmanuel v. State of Kerala (1986) arose when three children belonging to the Jehovah's Witnesses faith were expelled from school for not singing the National Anthem, though they stood respectfully while it was sung. 
• The Supreme Court held that the expulsion violated their fundamental rights under Article 19(1)(a) (freedom of speech and expression) and Article 25 (freedom of conscience and religion). 
• The Court recognised that the freedom of speech includes the right to remain silent, and that no law compelled a person to sing the National Anthem. 
• It famously emphasised that "our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance." 

What are the Relevant Constitutional Provisions? 

• Article 25: Guarantees to all persons freedom of conscience and the right to freely profess, practise and propagate religion, subject to public order, morality, health and other provisions of Part III. 
• Article 26: Guarantees every religious denomination the freedom to manage its own religious affairs, subject to public order, morality and health. 
• Article 19(1)(a): Guarantees freedom of speech and expression, which, as recognised in Bijoe Emmanuel, includes the right to silence. 
• Article 51A(a): Makes it a fundamental duty to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. Notably, the provision does not refer to the National Song. 

What is the Prevention of Insults to National Honour Act, 1971? 

• The Act penalises insults to the National Flag, the Constitution of India and the National Anthem. 
• Section 3 of the original Act penalises intentionally preventing the singing of the National Anthem or causing disturbance to an assembly engaged in such singing. 
• The 2026 amendment, as challenged, extends the statutory framework to the National Song and prescribes a mandatory code of conduct at public functions, backed by penal consequences. 

Conclusion 

The Supreme Court's observations reaffirm that the State's authority to prescribe national symbols and protocol must coexist with constitutionally guaranteed freedoms of conscience and religion. By signalling that Bijoe Emmanuel continues to govern, the Court has drawn a line between honouring a national symbol and compelling participation in it under threat of prosecution. The final ruling will be significant in defining how far the State can legislate expressions of patriotism, and whether penal compulsion to recite devotional stanzas can survive the tests of Articles 25 and 26 and the basic feature of secularism.