The Supreme Court on Tuesday told the Centre to keep in mind its 1986 judgment which protected children from penal actions if they do not sing the national anthem as it sought its response on a plea by Carnatic musician T M Krishna challenging the penal protection to Vande Mataram.
A bench comprising Chief Justice of India Surya Kant and justices Joymalya Bagchi and V Mohana was hearing a petition by Krishna challenging law mandating singing of all six stanzas of Vande Mataram, arguing that the last four stanzas violate the secular character of the nation.
The court said it would expect the principle laid down by the Supreme Court in its 1986 judgment in Bijoe Emmanuel vs State of Kerala to govern the amended law. In that case, the court had protected schoolchildren who respectfully declined to sing the national anthem on grounds of conscience.
The bench indicated that it was not for the court to determine what constitutes the national song, but said it would examine whether the rights of a “conscientious objector”, particularly one who declines to sing on religious grounds, are protected under the law.The bench said determining the national song was a matter for the democratic state and the court would not second-guess the national sentiment or aspiration associated with Vande Mataram.
At the same time, it indicated that a conscientious objector should not be subjected to criminal consequences merely for declining to sing one or more stanzas.“Nobody who feels an infraction of Article 25, 26 rights (freedom to practice religion under the Constitution) or a conscientious objector would be subjected to (penal consequences),” Justice Bagchi said.
He said the court was not examining what should constitute the national song.Senior advocate S Muralidhar, appearing for Krishna, said the amendment does not define the expression “national song”, leaving scope for uncertainty and possible misuse.He also said that the MHA directions were issued through an Office Memorandum which had not been gazetted and contended that the government had altered the earlier understanding of Vande Mataram through executive instructions.
Muralidhar said the amendment had been enacted without defining which version or 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.
The senior lawyer further submitted that the amendment had been enacted hastily and without what he described as a process of national consensus.
During the exchanges, Solicitor General Tushar Mehta opposed the petitioner’s submissions and submitted that “secularism cannot be this narrow”.At another stage, the solicitor general said that “law making cannot be as per Naxalites idea”.Muralidhar strongly objected to the submissions and sought withdrawal of the remark, saying 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 the Solicitor General declined to withdraw the 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, but said it was not taking note of the comments.
The solicitor general also urged the bench not to issue notice on the petition, saying doing so could “sensationalise” the issue.
While directing the Centre to respond, Justice Bagchi said the bench was not inclined to issue formal notice at this stage but expected the law declared in the Bijoe Emmanuel to govern the amended provision.
The petition challenged 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 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.The petitioner said extending this penal provision to the national song, coupled with directions for rendition of all six stanzas of Vande Mataram, raises fundamental questions concerning freedom of speech and expression, freedom of conscience, equality, religious freedom and secularism.
The petition specifically challenges the requirement that the complete six-stanza version be treated as the official version of the national song and that, where Vande Mataram and the national anthem are both sung or played, the former precede the latter.
Krishna said the last four stanzas of the six-stanza composition contain explicit references to Hindu deities and devotional imagery and that compelling citizens to sing those portions could infringe their freedom of conscience and religious freedom.