The Court drew a line early. Whether Vande Mataram is the National Song, and what a nation’s aspirations are, it said, is not for judges to dictate; that lies with the State and with history. But the moment the singing of it carries penal consequences, the constitutional question is squarely the Court’s, and on that the Bench signalled where it stood: a person who believes that singing it infringes their rights under Articles 25 or 26 cannot be punished for declining, and may choose whether to sing one stanza or four. Around that measured exchange, a sharp flashpoint erupted when the Solicitor General’s remark drew a strong protest from the petitioner’s side.
New Delhi: The Supreme Court has indicated that it will examine, to the extent penal consequences are involved, the challenge by Carnatic musician T.M. Krishna to the Centre’s circular on the singing of six stanzas of Vande Mataram and to the extension of the Prevention of Insults to National Honour Act, 1971 to Vande Mataram, while making clear that it is not for the courts to declare what constitutes the National Song [T.M. Krishna v. Union of India].
A Bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi heard the petition, in which Senior Advocate Dr. S. Muralidhar appeared for the petitioner and Solicitor General Tushar Mehta for the Union.
The challenge
According to the petition, four of the stanzas of Vande Mataram expressly invoke devotion to Hindu deities, and compelling people to sing those portions is said to violate the secular character of the nation. The petitioner also challenges the extension of the Prevention of Insults to National Honour Act to Vande Mataram, contending that it is arbitrary, infringes personal liberty and furthers what the petition describes as a majoritarian religious message.
Dr. Muralidhar submitted that the Office Memorandum had introduced the expression “National Song”, which the Act itself does not define, that it had not been gazetted, and that it did not cite the statutory provision under which it was issued. His central objection was to the penal dimension: where penal consequences are attached, he argued, there cannot be vagueness, and the State could not thrust the singing of the stanzas upon people and attach punishment to a refusal; such matters, he submitted, called for public opinion to be built rather than compulsion, and the changes appeared to have been made in haste, the original law containing no reference to a “National Song”.
What the Bench indicated
Justice Bagchi framed the constitutional question at the outset, asking whether a religious flavour by itself impacts the secular character of the Constitution, and noting that even the American national anthem, despite the strength of American constitutionalism, uses the word “God”. He also asked how the law would operate against a person who objected to singing, to which Dr. Muralidhar reiterated that the concern was the penal consequences.
The Bench drew a clear distinction between declaring a National Song and punishing those who decline to sing it. Whether Vande Mataram is the National Song, Justice Bagchi indicated, was settled and not for the courts to dictate; the CJI observed that anyone who reads history would know what the National Song is. But the penal aspect stood on a different footing:
“To the extent penal consequences are involved, we will examine the issue. But as far as declaring something the National Song is concerned, courts cannot dictate that.”
Invoking the Court’s decision in Bijoe Emmanuel v. State of Kerala, in which schoolchildren who declined to sing the national anthem on grounds of religious belief were protected, Justice Bagchi indicated that the law laid down there should govern, and that it is not for the Court to second-guess national aspirations, which are for the State:
“A person who believes that singing it infringes their rights under Articles 25 or 26 cannot be subjected to penal consequences… A person may choose whether to sing one stanza or four. There cannot be penal consequences.”
The Solicitor General submitted that the very issuance of notice might create a sensation, and asked that a copy of the petition be served on him.
The flashpoint over a remark
The hearing saw a sharp exchange after the Solicitor General remarked that law-making cannot be dictated by Naxalites. Dr. Muralidhar strongly objected, asking that the remark be withdrawn, saying it was unnecessary and that decorum must be maintained and such statements were not expected from a law officer. Justice Bagchi observed that the Court had not taken note of the remark. When the Solicitor General said he could repeat what he had said and was not sorry for it, Dr. Muralidhar registered his strong protest, and Senior Advocate Sanjay Hegde interjected that “to think is not to be a Naxalite”.
The Solicitor General thereafter clarified that his point was that legislative decision-making must take place within the constitutional framework and could not be dictated through arms or violence, and that the remark was not meant personally. Justice Bagchi observed that constitutional courts commanded respect and credibility precisely because even a person accused of terrorism is tried according to law, and that the Court had continuously fought against extra-constitutional forces.
Why it matters
The Court’s provisional approach separates two questions that are easily conflated in the public debate. One is the status of Vande Mataram as the National Song, and whether a religious element in it offends secularism, a question the Bench treated as historically settled and, in any case, a matter of national policy outside the judicial remit. The other is whether the State may compel the singing of it, or particular stanzas of it, on pain of penal consequences, which is a justiciable question about compelled speech and freedom of conscience, and it is here that the Bench indicated the constitutional protection bites.
The reliance on Bijoe Emmanuel is the doctrinal anchor. That decision established that the right to freedom of conscience and religion under Articles 25 and 26 protects a person who, on sincere belief, declines to sing, and that such a person cannot be penalised for a respectful refusal. Applied here, the Bench’s indication is that whatever the status of Vande Mataram, a citizen who believes that singing the deity-invoking stanzas infringes their faith cannot be visited with punishment for choosing not to, a protection the petitioner says the extension of the penal Act threatens.
The courtroom flashpoint, while it drew the sharpest attention, is a matter of decorum rather than of the legal issue, and the Bench recorded that it had not taken note of the disputed remark. Nothing has been decided on the merits; the Court has indicated the lines along which it will examine the penal dimension and asked for the petition to be served on the Union, and the substantive challenge, to the circular, to the “National Song” label and to the extension of the Prevention of Insults to National Honour Act, remains to be heard. The competing positions, the petitioner’s on secularism and compelled speech, the Union’s on the legitimacy of the legislative choice, will be weighed as the matter proceeds.
Case Title: T.M. Krishna v. Union of India
Bench: Chief Justice of India Surya Kant and Justice Joymalya Bagchi, Supreme Court of India
Appearing: Senior Advocate Dr. S. Muralidhar for the petitioner; Solicitor General Tushar Mehta for the Union; Senior Advocate Sanjay Hegde also appeared
Status: Court indicated it will examine the penal aspect of the challenge; petition to be served on the Union. No notice formally recorded on merits; nothing decided.