UPSC Mains
GS Paper II
Polity: Fundamental Rights & Duties
Vande Mataram, Fundamental Rights and the Right to Silent Dissent
The Supreme Court observed that a person cannot be penalised for refusing to sing Vande Mataram if doing so is protected by religious freedom, while hearing a challenge to the 2026 Amendment Act.
Key Precedent
Bijoe Emmanuel v. Kerala (1986)
Law in Question
Prevention of Insults to National Honour (Amendment) Act, 2026
Max Punishment (Sec. 3)
Up to 3 years’ imprisonment / fine / both
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National Song versus National Anthem
| Basis | National Anthem – Jana Gana Mana | National Song – Vande Mataram |
|---|---|---|
| Composer | Rabindranath Tagore | Bankimchandra Chattopadhyay |
| Origin | Composed by Tagore | Published in Bangadarshan (1875), later in Anandamath (1882) |
| Official Status | Adopted by the Constituent Assembly on 24 January 1950 | Given equal honour via Dr. Rajendra Prasad’s statement, 24 January 1950 |
| Constitutional Status | Not explicitly named in the Constitution | Not directly mentioned in the Constitution |
| Key Point | Is the National Anthem of India | Is the National Song, but not a co-anthem |
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Constitutional and Legal Framework
- Article 51A(a): Requires every citizen to respect the Constitution, National Flag and National Anthem — it does not mention the National Song.
- Article 25: Guarantees freedom of conscience and the right to freely profess, practise and propagate religion, subject to reasonable restrictions.
- Article 26: Guarantees freedom to manage religious affairs, often read alongside Article 25.
- Article 19(1)(a) & 19(2): Guarantee freedom of speech and expression, subject only to specified reasonable restrictions.
- Prevention of Insults to National Honour Act, 1971 (Act 69 of 1971): The parent law, administered by the Union Home Ministry. Section 2 protects the Flag and Constitution; Section 3 penalises intentionally preventing the singing of the National Anthem or disturbing an assembly singing it.
- Prevention of Insults to National Honour (Amendment) Act, 2026: Extends the same Section 3 protection to the National Song, placing Vande Mataram on the same legal footing as the National Anthem for the first time.
- Under Section 3, maximum punishment is imprisonment up to three years, a fine, or both; repeat offences under Section 3A attract at least one year’s imprisonment.
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Key Judicial Precedent: Bijoe Emmanuel Case (1986)
- The Supreme Court protected students who stood respectfully during the National Anthem but did not sing it due to genuine religious beliefs.
- Held that citizens cannot be forced to sing the National Anthem against their conscience — respectful standing is sufficient.
- The Court has referred to this same principle while examining the present Vande Mataram issue.
The right to silent, respectful dissent on religious grounds — not the act of refusal itself — is what the Constitution protects.
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Arguments Raised in the Present Case
- The petitioner argued that some stanzas of Vande Mataram contain devotional references, and compulsory singing could raise concerns under secularism and religious freedom.
- The Union Government argued that the law-making process was constitutionally valid and should not be unnecessarily politicised or sensationalised.
- The Supreme Court indicated that while the government can decide the scope and manner of honouring the National Song, it must respect Articles 25 and 26 and cannot punish genuine conscientious objectors.
The core constitutional tension is between the State’s power to legislate respect for national symbols and the individual’s fundamental right to freedom of conscience and religion.
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Source: The Hindu
