SC says state can set National Song, but cannot impose conscientious objectors to penal action
The Supreme Court observed that while the state may prescribe the National Song for official occasions, it cannot subject conscientious objectors to penal action for refusing to sing it
The observation came on a petition filed by Carnatic vocalist and author T.M. Krishna challenging the constitutional validity of the Prevention of Insults to National Honour (Amendment) Act, 2026 and related Ministry of Home Affairs directions on singing Vande Mataram
The bench referred to the 1986 Bijoe Emmanuel precedent, indicating that its protection for religiously motivated abstention from anthem-singing extends to the National Song as well
The Court issued notice and sought the Union government's response to the constitutional challenge
The Prevention of Insults to National Honour Act, 1971 (as amended in 2026)
Enacted as Act No. 69 of 1971, this law penalises disrespect to the National Flag, the National Anthem, and the Constitution of India. Section 3 punishes intentional prevention of the singing of the National Anthem, or causing disturbance to an assembly engaged in singing it, with imprisonment extending to three years, fine, or both. The Prevention of Insults to National Honour (Amendment) Act, 2026 extends this same statutory — and penal — protection to the National Song, Vande Mataram, for the first time.
Key Details
- Section 3 penalty: up to 3 years' imprisonment or fine or both; repeat offenders face enhanced minimum imprisonment of 1 year
- The 2026 amendment brings intentional prevention of Vande Mataram's singing, or disruption of an assembly singing it, within the same penal framework as the National Anthem
- Until this amendment, only the National Anthem had statutory penal protection under the 1971 Act — the National Song had none
- The Act does not itself compel anyone to sing; it penalises intentional prevention/disruption of others singing
T.M. Krishna's petition directly challenges this 2026 amendment, arguing that treating non-participation in singing all stanzas of Vande Mataram as an offence risks criminalising conscientious or religiously motivated abstention.
Constitutional Status of the National Song vs the National Anthem
On 24 January 1950, the Constituent Assembly adopted "Jana Gana Mana" as the National Anthem and gave "Vande Mataram" equal honour as the National Song — but only the National Anthem finds express mention in the constitutional text. Article 51A(a), which lists the Fundamental Duties, requires citizens to abide by the Constitution and to respect the National Flag and the National Anthem; it is silent on the National Song.
Key Details
- Article 51A(a) (added by the 42nd Amendment Act, 1976) names only the Flag and the Anthem, not the National Song
- Vande Mataram's status as National Song rests on the 1950 Constituent Assembly resolution and convention, not on constitutional text
- The 2026 amendment is the first time Vande Mataram has received a statutory (as opposed to purely symbolic) status comparable to the Anthem
Because the National Song lacks the National Anthem's textual anchor in Article 51A, extending Section 3-style penal protection to it through ordinary legislation is itself central to the constitutional challenge before the Court.
Bijoe Emmanuel v. State of Kerala (1986)
In this landmark "National Anthem case," the Supreme Court held that expelling three schoolchildren for standing respectfully but not singing the National Anthem — on the religious ground that their faith barred singing anything but prayers to their God — violated their fundamental right to freedom of conscience and religion. The Court held there is no legal provision obliging anyone to sing the National Anthem, and that standing respectfully during its singing is sufficient to show respect.
Key Details
- Decided in 1986 by a three-judge bench led by Justice O. Chinnappa Reddy
- Grounded in Article 25(1) (freedom of conscience and free profession, practice, and propagation of religion) read with Article 19(1)(a) (freedom of speech and expression, including the freedom not to speak)
- Held that respectful standing without singing does not amount to disrespect or an offence
- Continues to be treated as good law and was invoked in the present matter
The bench indicated that the Bijoe Emmanuel principle continues to hold the field — a person whose conscience or religious belief is protected under Articles 25 and 26 should not face criminal consequences merely for not singing the National Song, just as with the National Anthem.
- Prevention of Insults to National Honour Act, 1971 — Act No. 69 of 1971; Section 3 governs anthem-singing disruption
- Maximum imprisonment under Section 3: 3 years; minimum 1 year for a repeat offence
- Vande Mataram accorded National Song status: 24 January 1950, by the Constituent Assembly
- Bijoe Emmanuel v. State of Kerala: decided 1986, relied on Articles 19(1)(a) and 25(1)
- Relevant constitutional provisions: Article 25 (freedom of conscience), Article 26 (freedom to manage religious affairs), Article 51A(a) (fundamental duty toward Flag and Anthem)