Cannot penalise refusal to sing National Song, says SC

Why in news?

SC said conscientious objectors refusing Vande Mataram stanzas cannot face prosecution; sought Centre’s reply on 2026 Amendment.

UPSC Relevance

• Prelims: Vande Mataram (origin, adoption, status); Prevention of Insults to National Honour Act, 1971 and its 2026 Amendment; Articles 19(1)(a), 25, 26, 51A(a)
• Mains – GS-II: Fundamental Rights; Basic Structure (secularism); judicial review of legislation; executive orders vs. law. 

Prevention of Insults to National Honour Act, 1971

• It protects the National Flag, the Constitution of India and the National Anthem, Jana Gana Mana. 
• Section 2 deals with the Flag and Constitution. 
• Section 3 prohibits intentionally preventing the singing of the national anthem, or disturbing any assembly engaged in such singing. 
• These offences carry up to three years’ jail, a fine, or both, and a second or later conviction carries a minimum of one year.  

What did the 2026 amendment change?

• It adds the National song to Section 3 such that Vande Mataram gets the same protection as the National Anthem. 
• Intentionally preventing the singing of the National Anthem or National Song, or disturbing an assembly engaged in such singing, is now punishable with up to three years’ jail, fine, or both. 
• The government’s rationale rests on the 24 January 1950 Constituent Assembly proceedings, where Dr. Rajendra Prasad gave Vande Mataram status equal to Jana Gana Mana because of its role in the freedom struggle.  
• Section 3 punishes preventing or disturbing the singing – not for simply refusing to sing. The threat of penalty for non-singers comes from reading the Act together with the MHA orders dated January 28 and July 9, 2026 that require the complete six-stanza version to be sung at specified government, ceremonial and cultural occasions. The compulsion comes from the MHA executive orders.

The constitutionality test

• Fundamental Rights involved
  • Art. 19(1)(a): Free speech includes the right to remain silent. Compelled speech is also a restriction; it must fit Art. 19(2) grounds.
  • Art. 25: Freedom of conscience and religion (individual). Art. 26: Rights of religious denominations (collective).
    • Paras three to six expressly invoke devotion to Hindu deities, so mandating them violates the secular character of the nation. 
• Secularism is part of the Basic Structure – S.R. Bommai v. Union of India (1994).
• Justice Bagchi said the Bijoe Emmanuel ruling protecting those who choose not to sing the national anthem still holds the field. So a conscientious objector who does not recite one or all stanzas should not face criminal prosecution. 
• He also said that what is the National Song is not in dispute. It is for the democratically-elected state to decide and give aspiration as to what the National Song is. 

Hence, the Court accepted the symbol but signalled it will guard the individual’s conscience.

• Bijoe Emmanuel v. State of Kerala (1986)
  • Three Jehovah’s Witness children were expelled for not singing the Anthem, though they stood respectfully.
  • Bench (Justices O. Chinnappa Reddy and M.M. Dutt) held the expulsion violated Arts. 19(1)(a) and 25. Standing in respect is enough; no law compels singing. Executive instructions without statutory backing cannot restrict fundamental rights.
  • “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.” — Justice O. Chinnappa Reddy

Vande Mataram 

• Written by Bankim Chandra Chatterjee (1870s); included in his novel Anandamath (1882). 
• First sung at the INC session of 1896 by Rabindranath Tagore.
• Became the slogan of the Swadeshi Movement (1905). 
• In 1937, the Congress Working Committee chose only the first two stanzas for national occasions, as later stanzas invoke Durga, Lakshmi and Saraswati.
• On 24 January 1950, Dr. Rajendra Prasad declared in the Constituent Assembly that Vande Mataram shall be honoured equally with Jana Gana Mana.
• The Constitution does not mention a National Song. Article 51A(a) covers only the Flag, Anthem and Constitution.

Practice MCQs 

Q1. Consider the following statements:

1. Vande Mataram was first published in the novel Anandamath.
2. Article 51A(a) directs citizens to respect the National Song.
3. Vande Mataram was accorded equal honour with Jana Gana Mana on 24 January 1950.

How many of the above statements are correct?

1. Only one
2. Only two
3. All three
4. None

Answer: (b). Statement 2 is wrong: Art. 51A(a) mentions the Constitution, Flag and Anthem only.

Q2. Under Section 3 of the Prevention of Insults to National Honour Act, 1971, which of the following acts are punishable?

1. Intentionally preventing the singing of the National Anthem
2. Causing disturbance to an assembly engaged in singing the National Song
3. Failing to stand while the National Anthem is played

Select the correct answer:

1. 1 only
2. 2 and 3 only
3. 1 and 2 only
4. 1, 2 and 3

Answer: (c) Not standing is covered by the MHA’s executive orders, not by Section 3.