NEW DELHI: The Supreme Court on Tuesday said it would examine whether the right of a conscientious objector to refrain from singing the National Song on religious grounds, recognised in the 1986 Bijoe Emmanuel judgment, remains protected under the amended law.
A Bench comprising Chief Justice of India Surya Kant and Justices Joymala Bagchi and V. Mohana observed that determining the contours of the National Song was a matter for the State, but religious freedom under Articles 25 and 26 of the Constitution must be safeguarded.
“What is the national song is not in dispute. It is for the democratic state to decide what is the national song, whether two stanza or four stanza,” Justice Bagchi observed.
The Bench also said it expected that persons refusing to sing the National Song for religious reasons would not face penal action.
Carnatic musician TM Krishna has challenged the constitutional validity of the 2026 amendment to the Prevention of Insults to National Honour Act, 1971, which extends penal protection to Vande Mataram. He has also challenged the Ministry of Home Affairs’ directions mandating the singing of all six stanzas of the song at official functions.
During the hearing, the Bench orally observed that deciding what constitutes the “National Song” was beyond the remit of the court. However, it said it would examine whether the right to refrain from singing it, as upheld in the Bijoe Emmanuel case, continued to be protected.
The Bench initially appeared disinclined to issue notice to the Centre. It told Solicitor-General Tushar Mehta, appearing for the Centre, that it expected the law declared by the Supreme Court in Bijoe Emmanuel to govern the amended law.
“The declaration of law in Bijoe Emmanuel is not yet questioned. It is for the democratic state to decide what is the national song, whether two stanza or four stanza. But nobody who feels an infraction of Art. 25, 26 rights or a conscientious objector would be subjected to [penal consequences]. It's not the remit of the court to second-guess what is the national sentiments or aspiration associated with Vande Mataram. It is for the state to decide,” the court observed.
In Bijoe Emmanuel vs. State of Kerala (1986), the Supreme Court recognised the right of individuals to refrain from singing the National Anthem on grounds of religious conscience, provided they maintained respectful silence.
Krishna has argued that the Centre’s directions go beyond regulating protocol and effectively compel citizens to participate in singing the last four stanzas of Vande Mataram.
He has contended that the amendment and the directions violate fundamental rights under Articles 14 (equality), 15(1) (protection against discrimination), 19(1)(a) (freedom of speech and expression), 21 (life and personal liberty) and 25(1) (freedom of conscience and religion).