NEW DELHI — A "conscientious objector" should not be punished for refusing to sing Vande Mataram, the Supreme Court told the Centre on Tuesday while asking it to keep in mind a 1986 judgment protecting children who said no to singing the national anthem on grounds of conscience.
The bench headed by Chief Justice of India Surya Kant was hearing a petition by Carnatic vocalist T M Krishna challenging the law mandating singing of all six stanzas of Vande Mataram, arguing that the last four verses violate the secular character of the nation.
Seeking the Centre's response on the plea, the bench, also comprising Justices Joymalya Bagchi and V Mohana, said it would expect the principle laid down by the apex court's 1986 judgment in the Bijoe Emmanuel vs State of Kerala to govern the amended law.
In that case, the court protected schoolchildren who respectfully declined to sing the national anthem on grounds of conscience.
"... We are not inclined to issue notice. But we would expect that the law of the land, as declared by this court in Bijoe Emmanuel, will govern the (amended) Act," Justice Bagchi observed orally while addressing Solicitor General Tushar Mehta.
“What is the national song is not in dispute. The declaration of law in the Bijoe Emmanuel is not yet questioned. It is for the democratic state to decide what is the national song, whether two stanzas or four stanzas. But nobody who feels an infraction of Article 25 and 26 rights (fundamental right to freedom of religion) or a conscientious objector would be subjected to (penal consequences),” Justice Bagchi said.
Krishna's petition challenges Section 3 of the Prevention of Insults to National Honour Act, 1971, amended in 2026, along with Ministry of Home Affairs orders dated January 28 and July 9, 2026.
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.
Justice Bagchi said it is not the remit of the court to second guess what are the national sentiments or aspirations associated with Vande Mataram. That, he said, is for the state to decide.
The bench also indicated that it is not for the court to determine what constitutes the national song, saying 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 court, Justice Bagchi asserted, is 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 said the amendment had been enacted without defining which version or stanzas constituted the national song.
He added that the MHA directions were issued through an office memorandum that had not been gazetted and contended that the government had altered the earlier understanding of Vande Mataram through executive instructions.
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 also submitted that the amendment had been enacted hastily and without what he described as a process of national consensus.
The solicitor general also urged the bench not to issue notice on the petition, saying doing so could "sensationalise" the issue.
According to Krishna's petition, extending penal provisions 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.
An unpleasant exchange broke out between Muralidhar and the solicitor general during the proceedings.
Mehta opposed the petitioner's submissions and submitted that "secularism cannot be this narrow". At another point, he said "law making cannot be as per Naxalites idea".
Muralidhar strongly objected to this 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.