The Supreme Court on Wednesday refused to entertain a petition challenging the Union government’s instructions on the playing and singing of the national song Vande Mataram, observing that the January 28 circular for it was purely “advisory in nature” and imposed “no legal obligation” or penal consequences for non-compliance. The Supreme Court said there is no legal burden or consequence arising from the circular. (HT PHOTO)
A bench of Chief Justice of India Surya Kant and justices Joymalya Bagchi and Vipul M Pancholi termed the plea “premature” and founded on “vague apprehension of discrimination”, noting that there was no material to show any coercive action or discrimination flowing from the Union home ministry’s circular.
“What is mandatory? Nothing is mandatory. It is just an advisory,” remarked the bench during the hearing, emphasising that no penalty, sanction, or adverse consequence had been prescribed for those who choose not to sing or play the national song.
Dismissing the petition filed by one Muhammed Sayeed Noori, the court said: “We are not inclined to entertain this petition since the petition is pre-mature.” The court repeatedly pressed the petitioner’s counsel, senior advocate Sanjay Hegde, to demonstrate any legal burden or consequence arising from the circular.
“What is the legal burden? Where is the notice to you? The circular only prescribes the protocol...what is to be done, and the national song be played. We could still understand if your institution would have received a notice or a penalty imposed. It is just an advisory,” said the bench, pointing out that neither the petitioner nor his institution had been subjected to any directive or penalty.
Hegde argued that terms such as “respect” and “proper decorum” used in the circular could create an implied obligation, placing a “huge burden” on those who may choose not to participate. He submitted that patriotism could not be compelled.
The bench was unconvinced. “The freedom of expression is as much to sing as much not to sing,” it observed, adding that the advisory merely laid down protocol for occasions where the national song is played. “It is a premature apprehension. As and when there are consequences or sanction, come to us. At present, you have some vague apprehension of discrimination, and it does not have a clear nexus with the impugned advisory.”
Distinguishing earlier rulings such as the Bijoe Emmanuel case (1986), where consequences followed for students who refused to sing the national anthem, the court noted that no such punitive framework existed here. “We agree that Bijoe Emmanuel is the correct judgment. But what happened therein? Consequences had to follow if someone did not sing… What is the penalty here? We have not been able to find anything,” the bench said.
In the Bijoe Emmanuel case, the court held that expelling students based on their “conscientiously held religious faith” violated the Constitution of India. Three children were expelled from a school for not singing the national anthem because it was against their religious faith in Jehovah’s Witnesses.
Making it clear that judicial intervention would be warranted only if the advisory translated into coercive action, the court told the petitioner to approach it if any actual discrimination or penalty arises. “Come to us when you are discriminated on the plank of advisory… when there is an atmosphere that you are being singled out,” the bench told Hegde.
“As and when there are consequences or sanctions, come to us…You have some vague apprehension of discrimination, and it does not have a clear nexus with the impugned advisory.”
Solicitor general Tushar Mehta defended the circular, invoking the fundamental duties under Article 51A of the Constitution and questioning whether citizens needed to be formally advised to respect national symbols. He remarked that a petitioner arguing that patriotism is not compulsory “does not deserve the indulgence of this court”, to which Hegde responded that “the right to say this is the highest form of patriotism”.
The ministry of home affairs issued the January 28 circular to mark 150 years of Bankim Chandra Chatterjee’s Vande Mataram. It laid down a detailed protocol for the observance of the national song at official and public events, including the stipulation that it should be rendered before the national anthem when both are played together.
The circular identified occasions for its performance, such as civil investiture ceremonies, the arrival and departure of the president and governors at state functions, and certain ceremonial events involving the national flag.
Schools have been encouraged to incorporate community singing of the national song. Audiences are expected to stand to attention when it is played, subject to limited exceptions such as during film screenings.
The Supreme Court underscored that the notification stops short of making participation compulsory or prescribing any penalty for non-compliance.