The Supreme Court on Tuesday sought the Centre’s response on a plea challenging the penal provisions covering Vande Mataram, while referring to its 1986 judgment that protected schoolchildren who respectfully declined to sing the national anthem on grounds of conscience.
A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing a petition filed by Carnatic vocalist and author T M Krishna challenging the 2026 amendment to the Prevention of Insults to National Honour Act, 1971, and subsequent Ministry of Home Affairs directions concerning Vande Mataram.
Krishna has challenged the requirement to sing all six stanzas of Vande Mataram, arguing that the last four stanzas contain references to Hindu deities and devotional imagery and that compelling citizens to sing them raises questions relating to freedom of conscience, religious freedom, equality, free speech and secularism.
The court said the fact that Vande Mataram is the national song was not in dispute. However, it indicated that it could examine whether penal consequences for refusing to sing the song were consistent with fundamental rights under Articles 25 and 26 of the Constitution.
The bench referred to the Supreme Court’s 1986 judgment in Bijoe Emmanuel vs State of Kerala, in which it protected three schoolchildren who had declined to sing the national anthem on grounds of conscience while standing respectfully during its rendition.
The court indicated that the principle laid down in that judgment would be relevant to the amended law, particularly in cases involving a “conscientious objector”.
Justice Bagchi said the court was not examining what should constitute the national song, adding that such a determination was a matter for the democratic state. However, he indicated that the court would consider whether a person who declines to sing on religious or conscientious grounds could be subjected to penal consequences.
“Nobody who feels an infraction of Article 25, 26 rights or a conscientious objector would be subjected to (penal consequences),” Justice Bagchi said.
Senior advocate S Muralidhar, appearing for Krishna, argued that the amended law does not define the expression “national song”, leaving scope for uncertainty and possible misuse.
He also questioned the manner in which the Ministry of Home Affairs directions were issued, arguing that the relevant Office Memorandum had not been gazetted and that executive instructions had altered the earlier understanding of Vande Mataram.
Muralidhar submitted that the amendment did not specify which version or which stanzas constituted the national song. When Justice Bagchi observed that Vande Mataram was customarily understood as the national song, Muralidhar said the established understanding related to its first two stanzas.
He further argued that the amendment had been enacted without what he described as a process of national consensus.
Solicitor General Tushar Mehta opposed the submissions and said, “secularism cannot be this narrow”.
At another stage of the hearing, Mehta said, “law making cannot be as per Naxalites idea”, prompting Muralidhar to object and seek withdrawal of the remark.
Muralidhar said such a comment did not “befit” a law officer. Mehta said his reference was to those who, according to him, did not respect the law-making process.
After the hearing, Muralidhar again sought a retraction, but Mehta declined to withdraw his remark.
“I can repeat what I said. One has to go by law. I am not sorry about what I said. I said that is the constitutional way, not what the Naxalite wants. And I am not sorry about it,” the Solicitor General said.
Muralidhar later accused the Solicitor General of “playing to the gallery”. The bench did not intervene in the exchange and said it was not taking note of the comments.
Mehta also urged the bench not to issue notice on the petition, saying it could “sensationalise” the issue.
The bench did not issue formal notice at this stage but asked the Centre to respond and indicated that the legal principles laid down in Bijoe Emmanuel would have to be kept in mind while examining the amended provision.
The petition challenges Section 3 of the Prevention of Insults to National Honour Act, 1971, as amended in 2026, along with MHA orders dated January 28 and July 9, 2026.
According to the petition, the amended Section 3 provides for imprisonment of up to three years, or a fine, or both, for anyone who intentionally prevents the singing of the national anthem or national song, or causes disturbance to an assembly engaged in such singing.
Krishna has specifically challenged the requirement that the complete six-stanza version of Vande Mataram be treated as the official version of the national song and that, when Vande Mataram and the national anthem are both sung or played, the former should precede the latter.
The plea contends that extending the penal provision to the national song, coupled with directions for rendition of all six stanzas, raises fundamental questions concerning freedom of speech and expression, freedom of conscience, equality, religious freedom and secularism.
The Supreme Court’s intervention leaves the question of the application of penal consequences to those who decline to sing Vande Mataram on religious or conscientious grounds open for further consideration.
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