New Delhi: While ‘Vande Mataram’ remains the national song, but no one with genuine religious objections under Articles 25 and 26 of the Constitution can face penal consequences for not singing its contested stanzas, the Supreme Court said on Tuesday.
The bench of Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing a plea by Carnatic musician T M Krishna challenging a Centre’s circular mandating the full six stanzas and an amendment placing the song at par with the national anthem under the Prevention of Insults to National Honour Act.
Appearing for Krishna, senior advocate S Muralidhar, argued that four of the six stanzas expressly invoke devotion to Hindu deities and that compelling their singing violates the secular character of the Constitution. The amendment is arbitrary, invades personal liberty, and advances a “majoritarian religious message”, he contended.
“They have introduced the expression ‘national song’ but the Act does not define what a national song is. The office memorandum is not even gazetted. They don’t cite any provision,” Muralidhar submitted.
Penal consequences cannot rest on vagueness and the government had acted in “great hurry” without building public opinion, he stressed.
“You can’t thrust and have penal consequences,” he said, noting that the original law made no mention of a national song and that the government was now insisting it was not limited to the two commonly sung stanzas.
Justice Bagchi observed that “national song has always been understood as Vande Mataram” and that courts cannot second-guess national aspirations.
“It is for the state. Person can decide whether to sing one or four stanzas. There can’t be penal consequences,” the judge said, as reported by Deccan Herald.
The law of the land would govern and that “nobody who feels an infraction of Art. 25, 26 rights would be subjected to penal consequences, Justice Bagchi added, referring to the landmark Bijoe Emmanuel judgment.
On the secularism argument, he noted that the American national anthem uses the word ‘God’, asking whether religious flavour would impact the secular character of the Constitution.
Anyone reading history would know what the national song is, CJI Kant said remarked.
Solicitor General Tushar Mehta, however, argued that “constitutionalism can’t be this narrow” and defended the legislative process.
The hearing took a sharp turn when Mehta remarked that “law-making should not be as per Naxalites”.
This prompted a strong reaction from Muralidhar, who said the comment was unnecessary, was being broadcast live, and that decorum was expected from law officers.
“He should withdraw this,” Muralidhar said, later registering a “strong protest” when Mehta repeated that he was not sorry. Mehta clarified that his intention was that legislative decision-making must remain constitutional and cannot be dictated by arms or extra-constitutional means.
Justice Bagchi noted the court had not taken the remark on record and emphasised that constitutional courts enjoy credibility precisely because even those alleged to be terrorists are tried under the rule of law rather than by “kangaroo courts”.
Seeking a response from the Centre, the bench made it clear it would examine the question of penal consequences while affirming that the declaration of Vande Mataram as the national song itself was not open to judicial second-guessing.
