Supreme Court Says State May Fix Vande Mataram’s Stanzas but Cannot Prosecute Conscientious Objectors

The news

New Delhi. The Supreme Court on Tuesday, September 22, asked the Union government to respond to Carnatic vocalist T.M. Krishna’s challenge to the Prevention of Insults to National Honour (Amendment) Act, 2026. The three-judge Bench was headed by Chief Justice of India Surya Kant and included Justices Joymalya Bagchi and V. Mohana. According to The Indian Express, the amendment changes Section 3 of the Prevention of Insults to National Honour Act, 1971, so that Vande Mataram gets the same legal protection as the National Anthem, Jana Gana Mana. The petition, argued by senior advocate S. Muralidhar, says the amended law, read with Home Ministry directions issued in January and a circular issued in July, forces the playing and mass singing of all six stanzas of Vande Mataram before the National Anthem at public functions. Non-compliance risks three years’ jail, a fine or both. The petition calls stanzas three to six “expressly devotional, deity-invoking, and non-secular”. It says the scheme offends secularism, a basic feature, and “inflicts expressive subordination on believing Muslims and other conscientious objectors”. A conscientious objector is a person who refuses an act on grounds of conscience or faith. Justice Bagchi said the elected state may decide “whether it should be two stanzas or four stanzas”, but that “nobody can infract Article 25 and 26 or subject a conscientious objector to penal consequences”. He said the 1986 ruling in Bijoe Emmanuel v. State of Kerala still holds, and that “by custom and usage” the national song has always been understood as Vande Mataram. He added that homage to a particular God may not affect secularism, since the American anthem uses the word ‘God’. Mr. Muralidhar argued that the amended Act uses the words “national song” without defining them, that “a penal statute cannot be in the realm of vagueness”, and that the Home Ministry’s office memorandum was never gazetted and cites no provision of law. Solicitor-General Tushar Mehta said “Jai Hind is not mentioned in the Constitution” and that “law-making cannot be as per Naxalites’ idea”. He did not withdraw the remark when Mr. Muralidhar objected, and the Bench said it had “not taken note” of it. The Centre has two weeks to file a counter-affidavit. The Bench’s remarks were oral; the only direction reported is the call for a reply. The syllabus link is GS2: fundamental rights, secularism and the limits of penal law.

Static syllabus linkage

1. Vande Mataram has constitutional honour but the Constitution does not name it. Vande Mataram was composed by Bankim Chandra Chattopadhyay and appears in his novel Anandamath (1882). On January 24, 1950, Rajendra Prasad, the President of the Constituent Assembly, declared that Jana Gana Mana would be the National Anthem. He added that Vande Mataram, which had played a historic part in the struggle for freedom, would be honoured equally with it. The text of the Constitution names neither song. Article 51A(a) makes it a fundamental duty to respect the Constitution, the National Flag and the National Anthem, but it does not mention the national song. In 1937 the Congress Working Committee decided that only the first two stanzas would be sung at national gatherings, because the later stanzas invoke Hindu goddesses.
2. The 1971 Act punished obstruction of the Anthem, not a refusal to sing it. Section 2 of the Prevention of Insults to National Honour Act, 1971 punishes insults to the National Flag and the Constitution. Section 3 punishes anyone who intentionally prevents the singing of the National Anthem, or disturbs an assembly engaged in singing it, with imprisonment of up to three years, a fine, or both. The offence was built around preventing or disrupting the song, not around a person’s own silence. The 2026 amendment extends Section 3 to the national song. The petition reads the amendment together with the Home Ministry directions and argues that simply not complying now carries the same penalty. The reports do not reproduce the amended text, so the Centre’s counter-affidavit will show how the government reads its own law.
3. Bijoe Emmanuel (1986) protects standing in respectful silence. In Bijoe Emmanuel v. State of Kerala (1986), three schoolchildren who were Jehovah’s Witnesses were expelled because they did not sing the National Anthem, although they stood respectfully while it was sung. The Supreme Court held that the expulsion violated their freedom of speech and expression under Article 19(1)(a), which includes the right to remain silent, and their freedom of conscience and religion under Article 25. It found that no law required anyone to sing the Anthem, and that departmental circulars were not ‘law’ that could restrict a fundamental right under Article 19(2). The judgment closes with the line: “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.” In Shyam Narayan Chouksey v. Union of India the Court ordered the Anthem to be played in cinema halls in 2016, then made it optional in 2018.
4. Only a valid law can restrict a fundamental right, and a penal law must be precise. Article 25 guarantees freedom of conscience and the right to profess, practise and propagate religion, subject to public order, morality, health and the other fundamental rights. Article 26 gives religious denominations the right to manage their own affairs in matters of religion. Article 28(3) says that no one attending an educational institution recognised or aided by the State can be required to take part in religious worship there without consent. In Kharak Singh v. State of U.P. (1962), the Court held that executive instructions are not ‘law’ that can justify restricting a fundamental right. In Shreya Singhal v. Union of India (2015), it struck down Section 66A of the IT Act partly because terms such as “grossly offensive” were too vague to warn citizens what was forbidden. Secularism was held to be part of the basic structure in S.R. Bommai v. Union of India (1994).

Why UPSC loves this

1. GS2 and GS1 keep returning to the Indian model of secularism. Mains has repeatedly asked how Indian secularism differs from the Western model, and what challenges cultural practices face in its name. This case tests both at once. The state claims a cultural symbol, the petitioner says the symbol is religious, and the Bench points to the American anthem as an example of ‘positive secularism’. An answer that sets Bijoe Emmanuel against this idea of positive secularism will stand out.
2. Prelims tests national symbols, fundamental duties and the 1971 Act. Questions have asked which symbols Article 51A names, who wrote the national song and the National Anthem, and what the 1971 Act punishes. This amendment adds a new fact to that set: the statutory status of the national song. The Bijoe Emmanuel facts are a standard Prelims pairing with Articles 19(1)(a) and 25.
3. GS4 uses conscience and tolerance as case material. The ethics paper asks about conscience as a source of ethical guidance and about tolerance in public life. A civil servant who must enforce patriotic observances in a mixed classroom or office is exactly the kind of case study GS4 favours, and Bijoe Emmanuel supplies the principle to apply.

Analysis

1. The Bench has put the line in the right place: the state may choose the symbol but not the citizen’s voice. Justice Bagchi separated two powers that the petition treats as one. The first is the power to decide what the national song is, which the Bench leaves to the elected government. The second is the power to force a person to sing it, which the Bench says is not available under the Bijoe Emmanuel rule. This is a sound division. Courts are poorly placed to decide national aspirations, but they are well placed to protect individual conscience. The counter-view comes from the petition itself. It argues that the harm lies not only in the penalty but in the state adopting openly devotional stanzas as its own, which it calls “expressive subordination”. On that view, removing the penalty still leaves a state ceremony that some citizens cannot join as equals.
2. The American analogy is weaker than it sounds. The Bench pointed to the American national anthem’s use of the word ‘God’ as an example of positive secularism. A generic reference to God is not the same as stanzas that the petition says invoke particular deities of one faith. The American example also cuts the other way. In West Virginia State Board of Education v. Barnette (1943), the U.S. Supreme Court held that schoolchildren could not be compelled to salute the flag. The American settlement is therefore symbolic religiosity with no compulsion. That supports the Bench’s refusal to allow penal consequences, but it does not show that the content of the stanzas is constitutionally irrelevant.
3. Vagueness, not secularism, is the petition’s strongest legal ground. A secularism argument asks the Court to rule on the religious character of a revered text, which it will be reluctant to do. The vagueness argument is narrower and harder to answer. A penal law that punishes conduct relating to a “national song” without defining it leaves the offence to be filled in by an ungazetted office memorandum, so a citizen cannot know from the statute what is required. Justice Bagchi’s reply that “custom and usage” identifies the song answers which song is meant, but not how much of it. As Mr. Muralidhar put it, custom points to two stanzas, not six. The same principle, that the legislature must define a crime, is at the centre of the Gangsters Act ruling in this section.
4. Oral assurances do not yet protect anyone. Everything the Bench said about conscientious objectors was said orally. The reports mention no interim order protecting people who stay silent, only the call for a counter-affidavit in two weeks. A teacher, a student or an employee who stays seated during a six-stanza rendition still faces a statute and executive directions that have not been stayed. Courtroom remarks carry weight with governments, but they do not bind a police station. The counter-affidavit may narrow the dispute: if the Centre says the law punishes only obstruction, as the original Section 3 did, much of the conflict disappears. If it defends punishing non-participation, Bijoe Emmanuel will be tested directly.
5. The Solicitor-General’s remark cost the government more than it gained. Calling an argument made in a constitutional court the idea of ‘Naxalites’ treats a legal objection as if it were an insurgency. A law officer is entitled to argue hard, and the Bench wisely declined to take note of the remark, keeping the hearing on the legal issue. But the hearing was being streamed live, as Mr. Muralidhar pointed out, and the words will outlast the arguments. The government’s strongest point, that national symbols need not be neutral and that ‘Jai Hind’ is used without any constitutional basis, got lost in the exchange. When advocacy of this kind comes from the state, it discourages citizens from bringing the challenges that constitutional adjudication depends on.

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