The Supreme Court on September 22 said that a conscientious objector should not be punished for refusing to sing Vande Mataram. A bench of Chief Justice of India Surya Kant and justices Joymalya Bagchi and V Mohana made the observation while hearing a petition by noted Carnatic vocalist T M Krishna, challenging the constitutional validity of the 2026 amendment to the Prevention of Insults to National Honour Act, 1971, which criminalises insults to the National Song, Vande Mataram. The petition went on to argue that the last four verses of Vande Mataram violate the secular character of the nation.
Though the hearing turned contentious when Solicitor General Tushar Mehta, representing the Central government, remarked that constitutional decision-making rests with Parliament rather than conforming to "what the Naxalites want", the most significant part of the court’s observation was to ask the Centre to keep in mind a 1986 judgment protecting children who refused to sing the National Anthem on grounds of conscience.
The bench said it expects the principle laid down by the Supreme Court's 1986 judgment in the Bijoe Emmanuel vs State of Kerala would govern the amended law.
What was the Bijoe Emmanuel case all about?
Three children — Bijoe, Binu Mol, and Bindu Emmanuel — belonging to a Christian sect called Jehovah's Witnesses, who worship only the Creator, Jehovah, and no one else, refused to sing Jana Gana Mana. They claimed singing it was against the tenets of their religious faith. However, they had nothing against the lyrics or the thoughts expressed in the National Anthem.
Followers of Jehovah's Witnesses worldwide have a tendency to attract legal challenge, as their faith objects to military service and disallows them from saluting state symbols like flags. One of the fundamental tenets of their belief is that Satan rules and controls the world through material agencies such as organised political, religious and financial bodies.
While the children in Kerala desisted from actual singing, they would stand in respectful silence daily, during the morning assembly when the National Anthem was recited. The students followed this practice for several years without objection. However, the situation changed in July 1985 after a Member of the Legislative Assembly in Kerala flagged the issue.
What was the action taken against them?
A commission was appointed to probe the matter. After the inquiry, it found that the children were "law abiding" and that they showed no disrespect to the National Anthem. Yet, under the instructions of the Deputy Inspector of Schools, the head mistress had to expel the appellants from school from July 26, 1985.
What did the students/parents do after rustication?
The children’s father approached authorities demanding that their right to education be restored. He later filed a petition before the Kerala High Court seeking an order restraining the authorities from preventing his children from going to school.
What did the HC order?
A single judge, and later a division bench rejected their application. The petitioner then approached the Supreme Court. He relied upon Article 19(1)(a), which guarantees freedom of speech and expression, as well as Article 25(1), which guarantees freedom of conscience and the right to freely profess, practise and propagate religion, subject to constitutional limitations.
What was the SC’s ruling?
In a judgment delivered on August 11, 1986, a two-judge bench of justices O Chinnappa Reddy and M M Dutt allowed the appeal, holding that the children's fundamental rights under Articles 19(1)(a) (freedom of speech and expression), and 25(1) (right to freely practice, profess and propagate religion) had been violated. They concluded by saying, “our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.” The court said the key distinction was between respecting the National Anthem and actually singing it. “There is no provision of law which obliges anyone to sing the National Anthem nor do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does not join the singing,” the court said.
Proper respect was shown to the National Anthem by standing up when it is sung, as required under Article 51A(a) of the Constitution, the court said. "It will not be right to say that disrespect is shown by not joining in the singing," it added.
Did the kids violate the law?
The bench said that standing respectfully when the National Anthem is sung but not singing it, does not prevent its singing or cause disturbance to an assembly engaged in such singing so as to constitute the offence mentioned in Section 3 of the Prevention of Insults to National Honour Act, 1971.
What did the court say about the Freedom of Expression?
The bench noted that requiring participation in school assemblies and the singing of the National Anthem was brought into effect by departmental instructions rather than statutory provisions, while holding that such instructions could not be used to curtail a fundamental right protected by Article 19(1)(a). “The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions,” the bench said, adding that that the circulars could not form the basis for action denying citizens their fundamental rights. It held that compelling every pupil to sing based on those circulars, despite a genuine religious objection, would violate Articles 19(1)(a) and 25(1).
What did the court say about applicability of Article 25?
The protection of conscience could not depend upon whether a judge personally agreed with a particular religious belief. “The question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion… Our personal views and reactions are irrelevant,” the court said. It also held that the children's beliefs were genuinely and conscientiously held.
“Their conduct was not an attempt to make a political or unpatriotic statement. They do not hold their beliefs idly and their conduct is not the outcome of any perversity.” It ruled that the expulsion of the children violated their freedom of conscience and their freedom to profess, practise and propagate religion.
What does the 1986 judgment mean today?
Since the Bijoe Emmanuel judgment has not yet been questioned, it remains the law of the land. As Justice Bagchi observed, nobody who feels an infraction of Articles 25 and 26 rights, or a conscientious objector, ought to be subjected to penal consequences.
What is the petitioner’s position on Bijoe Emmanuel?
Petitioner T M Krishna relied heavily on Bijoe Emmanuel, saying the principle protecting freedom of conscience recognised in that verdict applies to his objection to being compelled to render the last four stanzas of Vande Mataram that invoke Hindu deities. The petition contends that Article 25(1) protects freedom of conscience, adding that the genuineness of a conscientious objection, rather than its theological correctness, is the relevant inquiry. The 2026 amendment, the petition argues, violates Article 19(1)(a) by compelling citizens to participate in what is an ideological and devotional ceremony.