Supreme Court says state can set National Song but cannot prosecute conscientious objectors

The Supreme Court on Tuesday (September 22, 2026) observed that while a democratically elected government can shape the scope and length of the National Anthem, it cannot infringe on individual and collective religious freedoms or subject conscientious objectors who refuse to sing one or all stanzas of ‘Vande Mataram’ to criminal consequences.

“What is the National Anthem is not in dispute… It is up to the democratically elected state to decide and give aspiration to what the National Anthem is, whether it should be two stanzas or four stanzas. But no one can violate Article 25 and 26 (religious freedom) or subject conscientious objectors to criminal consequences… It is up to the national objector or subject to all prosecutions,” Justice Joymalya Bagchi observed, which is part of a three-judge bench headed by Chief Justice of India Surya Kant.

Justice Bagchi said the Supreme Court’s 1986 precedent in Bijoe Emmanuel v State of Kerala, which upheld the right to religious freedom, constitutional tolerance and silent objection, still stands.

The court asked the Union government to respond to a petition filed by renowned Carnatic singer and author TM Krishna challenging the Prevention of Insults to National Honor (Amendment) Act, 2026 read with administrative instructions issued by the Home Ministry 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 order make all six stanzas of Vande Mataram to be played and sung en masse before the National Anthem at public events. Failure to comply is punishable by three years imprisonment or a fine or both.

The petition states that the amended Section 3 of the Act not only regulates national protocol and prescribes a uniform code of conduct for public office, but also “enforces a ceremony of assent to a symbol, the last four stanzas of which are expressly pious, invoking deities and non-secular”. The petition states that stanzas three to six were “expressly devotional, invoking deities and non-secular”.

“By mandating the release of all six slokas under criminal penalty, the state is turning what is undoubtedly a contested historical symbol into enforced orthodoxy. The measure is formally neutral but clearly coded in content. It sends a signal of majority religion and imposes a marked subservience on devout Muslims and other opponents of the petition.

The petitioner said that the scheme violates the fundamental rights guaranteed by the Constitution and violates the basic feature of secularism.

Court debates what defines ‘national song’

“The 2026 bill doesn’t even define what a ‘National Anthem’ is,” Dr. Muralidhar.

Chief Justice Kant said that anyone who tries to read history will know the National Song. Solicitor General Tushar Mehta, who was present in the courtroom, intervened to point out that Vande Mataram has been the national song since before independence. Justice Bagchi said customs and usages could also be used to reach the same conclusion.

In the early moments of the hearing, Justice Bagchi said that a religious flavor or an icon or a tribute to a particular God need not affect secularism in a constitutional democracy. “If so, nothing could be a stronger example of positive secularism than the US Constitution, yet the US national anthem uses the word ‘God,'” the judge reasoned.

Noting that the court often does not like to articulate national aspirations or perceived nationalism, Justice Bagchi said the Bench will definitely examine whether the 2026 amendment and government circulars stifle the rights of conscientious objectors.

Legislature cannot be as Naxalites imagine: Solicitor General

Mr. Mehta put in a note, “Let’s not sensationalize the national song”.

“We are not here to create sensation. We are only here to ensure that the law of the land declared under the Bijoe Emmanuel judgment governs the 2026 amendment bill,” Justice Bagchi said.

Dr. Muralidhar criticized the law-making process, saying the definition of “national song” required wider debate and consensus. He emphasized that it cannot be imposed on citizens under the threat of criminal penalties. He further pointed out that the Home Office memorandum was never made public and did not cite any supporting provisions of the Act.

The Attorney General countered that “the process of law making is according to the constitution, legislation cannot be as per the ideas of the Naxalites”.

Against Mr. Mehta’s comments, Dr. Muralidhar strongly objected saying that it was offensive and did not belong to the office of a law officer of the government. Dr. Muralidhar said such comments were only playing to the gallery.

The debate also drew comments from senior advocate Sanjay Hegde and Justice Bagchi, who opposed Mr. Mehta’s remarks.

Published – 22 Sep 2026 15:06 IST