1986 ruling holds, can’t penalise for not singing: SC at Vande Mataram hearing

Why in the News

The Supreme Court has said that a person who declines to recite one or all stanzas of the national song cannot be subjected to “criminal consequences”. A three-judge Bench headed by the Chief Justice of India said it will examine whether refusal to sing the Vande Mataram can carry penal consequences. The Bench was hearing a challenge by Carnatic vocalist T M Krishna to the law mandating the singing of all six stanzas. The Centre has amended Section 3 of the Prevention of Insults to National Honour Act, 1971, extending to Vande Mataram the same legal protection that Jana Gana Mana carries. The Bench reminded the Centre of Bijoe Emmanuel and Others vs State of Kerala and Others (1986). It said the law declared in that case will govern the amended Act. The contest is between an elected legislature’s power to declare what the national song is and an individual’s freedom not to sing it.

What is the Prevention of Insults to National Honour Act, 1971?

1. Amended Section 3: Section 3 now extends to Vande Mataram the same legal protection the Act already gave Jana Gana Mana.
2. A new expression in the statute: The amendment introduced the expression “national song” into the Act. The Act itself does not define what a national song is.
3. The operative guideline: The requirement to sing all six stanzas at official functions rests on an office memorandum. That memorandum is not gazetted and cites no enabling provision.
4. Custom and usage: By custom and usage the national song has always been understood as Vande Mataram.

What did Bijoe Emmanuel (1986) settle?

1. The facts: Students belonging to Jehovah’s Witnesses were expelled for refusing to sing the national anthem. They had stood respectfully in silence during the anthem.
2. The holding: The Supreme Court held that the expulsion violated their fundamental rights.
3. Its standing today: The declaration of law in that case has not yet been questioned, the Bench said. It expects that declaration to govern the amended Act.
4. What is not in dispute: The Bench said that what the national song is, is not in dispute before it.

Why did the Bench not take up the secularism argument?

1. The petition’s ground: The plea argues that the guideline on singing all six stanzas violates the constitutional principle of secularism. The last four stanzas carry explicit Hindu references.
2. The Bench’s view: A national song expressing homage to a particular God or form of God would not perhaps impact secularism, the Bench said.
3. The Centre’s position: The Solicitor General argued that secularism “will never be this narrow”.
4. The question taken up instead: The Bench said the question whether a conscientious objector, meaning a person who refuses on grounds of conscience, can be subjected to penal consequences may require examination.

What is the vagueness objection to the amended law?

1. An undefined term in a penal statute: A penal statute cannot operate in the realm of vagueness. The Act makes conduct punishable and leaves the expression at the centre of that offence undefined.
2. Risk of misuse: Counsel for the petitioner called the absence of a definition a serious lacuna in the Act that can be misused.
3. A change in settled scope: The national song has been understood as two stanzas. For the first time after 80 years it is being presented as more than two.
4. Consensus before penalty: Use of the term national requires the building of public opinion and consensus. It cannot be thrust on citizens with penal consequences attached.

Where does the line fall between the legislature’s choice and the individual’s right?

1. The legislature’s domain: It is for the democratically elected state to decide what the national song is, whether two stanzas or four, the Bench said.
2. The Court’s limited remit: It is not the remit of the Court to second guess the national sentiments and aspirations associated with Vande Mataram.
3. The individual’s protection: Nobody who feels an infraction of Article 25 and Article 26 rights would be subjected to penal consequences. The same protection extends to a conscientious objector who declines to recite one or all stanzas.
4. Extent of penalty reserved: The extent of penal consequences requires examination, the Bench said.
5. Scope of the hearing: The Bench declined to take note of the Solicitor General’s remark that “lawmaking cannot be as per Naxalite’s ideas”. It confined itself to the constitutional issue before it.

Conclusion

A statute can borrow the authority of the word national without saying in law what that word covers. That is the gap this hearing has exposed. The Court has split the question in two, leaving the choice of the national song to the elected legislature and signalling that an individual’s refusal to sing it cannot be punished. The Centre has been asked to file its counter-affidavit within two weeks, and the extent of penal consequences is what the Bench has reserved for itself to decide.

Matching Previous Year Question

“[2017, GS2, 15 marks] Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy.”