The Supreme Court on Tuesday (September 22, 2026) observed that while a democratically-elected government may give shape to the scope and length of the National Song, it cannot violate individual and collective religious freedoms or subject conscientious objectors, who refuse to sing one or all the stanzas of the ‘Vande Mataram’, to penal consequences.
“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, whether it should be two stanzas or four stanzas. But nobody can infract Article 25 and 26 [religious freedom] or subject a conscientious objector to penal consequences… It is for the conscientious objector to recite one or all stanzas of the National Song without subjecting himself to criminal prosecution,” Justice Joymalya Bagchi, part of a three-judge Bench headed by Chief Justice of India Surya Kant, observed.
Justice Bagchi said the 1986 Supreme Court precedent in the Bijoe Emmanuel versus State of Kerala upholding the right to religious freedom, constitutional tolerance and silent objection still holds true.
The court sought a response from the Union government on a petition filed by renowned Carnatic vocalist and author T.M. Krishna challenging the Prevention of Insults to National Honour (Amendment) Act, 2026 read with the administrative directions issued by the Ministry of Home Affairs in January and a subsequent circular in July.
Mr. Krishna, represented by senior advocate S. Muralidhar and advocate Prasanna S., said the amended law and Executive orders compel the playing and mass singing of the entire six stanzas of Vande Mataram ahead of the National Anthem at public functions. Non-compliance would risk three years’ imprisonment or fine or both.
The petition said the amended Section 3 of the Act not only regulates national protocol and prescribes a uniform code of conduct for public functions, but also “compels a ceremony of assent to a symbol whose last four stanzas are expressly devotional, deity-invoking and non-secular”. The petition said stanzas three to six were “expressly devotional, deity-invoking and non-secular.”
“By mandating the rendition of all six stanzas under penal sanction, the state transforms what is unquestionably a contested historical symbol into a compelled orthodoxy. The measure is formally neutral but, manifestly, substantively coded. It sends a signal of majoritarian religious alignment and inflicts expressive subordination on believing Muslims and other conscientious objectors,” the petition said.
The petitioner said the scheme violated fundamental rights guaranteed under the Constitution and offended the basic feature of secularism.
Court discusses what defines a ‘National Song’
“The 2026 Act does not even define what a ‘National Song’ is,” Mr. Muralidhar submitted in the hearing.
Chief Justice Kant said anybody who took pains to read history would know the National Song. Solicitor General Tushar Mehta, who was present in the court room, intervened to point out that Vande Mataram was the National Song since pre-Independence. Justice Bagchi said customs and usages could also be called upon to reach the same conclusion too.
Justice Bagchi, in the initial moments of the hearing, said religious flavour or an icon or homage to a particular God may not perhaps impact secularism in a constitutional democracy. “If so, nothing can be a stronger example of positive secularism than the American Constitution, yet the American National Anthem uses the word ‘God’,” the Judge reasoned.
Noting that the court is often loath to articulate national aspirations or second-guess nationalism, Justice Bagchi said the Bench would definitely examine if the 2026 amendment and the government circulars choke the rights of conscientious objectors.
“Law-making cannot be as per Naxalites’ idea”: Solicitor General
Mr. Mehta interjected to remark, “let us not bag the National Song in sensationalism”.
“We are not here to create sensations. We are here only to ensure that the law of the land declared under the Bijoe Emmanuel judgment governs the 2026 amendment of the Act,” Justice Bagchi said.
Mr. Muralidhar criticised the law-making process, saying a definition of the ‘National Song’ required broader debate and consensus. He emphasised that it cannot be thrust upon citizens under threat of penal action. He further pointed out that the Home Ministry’s office memorandum was never gazetted and cited no supporting provision of law.
The Solicitor General objected that “law-making process is done as per the Constitution, law-making cannot be as per Naxalites’ idea”.
Mr. Mehta’s comment was strongly objected to by Mr. Muralidhar, saying it was offensive and did not behove the office of a law officer of the government. Mr. Muraldihar said such comments were merely playing to the gallery.
The debate also invited comments from senior advocate Sanjay Hegde, and Justice Bagchi who took to countering Mr. Mehta’s remarks.
Published – September 22, 2026 03:06 pm IST
