Parliament Must Define the Offence Before Criminalising Vande Mataram
Extending penal protection to the National Song raises an important constitutional question: Parliament may protect a national symbol, but criminal liability must be defined with enough clarity to distinguish deliberate obstruction from respectful non-participation.
Union Home Minister Amit Shah has tabled the Prevention of Insults to National Honour (Amendment) Bill, 20 26 today in the Rajya Sabha. The Bill seeks to add the words “or the National Song” to Section 3 of the Prevention of Insults to National Honour Act, 1971 (65 of 1971). The amended Section 3 would make punishable with imprisonment of up to three years any person who “intentionally prevents” the singing of the National Anthem or the National Song, or “causes disturbance” to any assembly engaged in such singing.
The Bill would introduce penal consequences that earlier this year were found to be lacking by the Supreme Court. On March 25 this year, the Supreme Court refused to intervene in Muhammed Sayeed Noori’ Appeal challenging a Ministry of Home Affairs directive dated February 6 this year requiring the singing of all six stanzas of Vande Mataram at official functions and school assemblies, since it used the word “may” instead of “shall” and prescribed no penal consequences for non-compliance.
“If singing of Vande Mataram is made mandatory and non- compliance thereof is visited with penal consequences … a constitutional issue would arise.”
The proposed amendment brings that issue forth. While it extends Section 3 to the National Song, it retains ambiguous phrases such as “intentionally prevents”, “causes disturbance” and “assembly engaged in such singing”. It thus creates criminal liability for undefined speech and conduct.
Why the Existing Language of Section 3 Matters
Section 3 has been on the statute books for five decades but still provides no statutory definitions for expressions such as “intentionally prevents”, “causes disturbance” or “assembly engaged in such singing”. Judgments of the Supreme Court and High Courts continue to play an important role in defining the scope of these expressions.
The scope of Section 3 was considered by the Supreme Court in Bijoe Emmanuel v. State of Kerala (1986). Bijoe and two other Jehovah’’s Witnesses schoolchildren respectfully stood for the National Anthem but refused to sing along, on grounds of religious conscience.
The Supreme Court held that their conduct did not amount to “intentionally preventing” the singing of the National Anthem or causing disturbance to the assembly in which it was sung. Respectful non-participation, the judgment makes clear, does not attract Section 3.
Following Bijoe Emmanuel, the Kerala High Court held in Salman v. State of Kerala (2014) that Section 3 applies to affirmative acts of obstruction or disruption of the National Anthem. Passive presence or respectful silence does not fall within the offence. Taken together, these decisions show that Section 3 has never been applicable to respectful non-participation.
The amendment ignores these decisions. By leaving untouched the existing language of Section 3, it fails to incorporate the doctrinal limitations explained by Courts over four decades of living with the law.
And while it extends the application of Section 3 to singing of the National Song, it points to Dr Rajendra Prasad’s declaration of 24 January, 19 50 for the purposes of interpretation.
Dr Prasad’s declaration explains why Vande Mataram was given equal statutory protection with the National Anthem; it does not explain how Section 3 should apply to respectful non-performance of the National Song.
Vagueness in Criminal Law Creates a Constitutional Problem
The constitutional problem is not solved by incorporation of the National Song into Section 3 because the essential ingredients of the offence are still statutorily undefined.
Principle of Legal Certainty
The nullum crimen, nulla poena sine lege principle mandates that criminal offences and penalties should be defined clearly enough to give reasonable notice to citizens of the consequences of their actions.
Articles 14 and 19(1)(a) of the Constitution demand the same. Vague criminal laws can be arbitrarily enforced and can have a chilling effect on the exercise of fundamental rights.
Section 66A of the Information Technology Act was struck down on this account by the Supreme Court in Shreya Singhal v. Union of India (2015) because vague terms such as “grossly offensive” failed to provide adequate normative guidance.
Article 15(1) of the International Covenant on Civil and Political Rights does not allow the creation of criminal offences or higher penalties retrospectively. The United Nations Human Rights Committee has also stated that Article 15 reflects the principles of nullum crimen and legal certainty.
Parliament can give statutory effect to Dr Rajendra Prasad’s declaration and extend statutory protection to the National Song. But before it does so, it must address the ambiguity inherent in Section 3.
Legislatures, not Courts, must define the criminal law.
Freedom of Conscience and Criminal Liability
The lack of statutory clarity matters even more when one considers that the amendment is introduced along with the Union Home Ministry’s February 6, 20 26 order directing authorities to mandatorily sing all six stanzas of Vande Mataram at government ceremonies, official functions and school assemblies.
The Supreme Court refused to entertain a challenge to that order because it prescribed no punishment. But that punishment is now being added by the amendment’s penalty clause, without defining what conduct is punishable as crime.
That matters because Vande Mataram has never been bestowed with the kind of iconic stature we attribute to the National Anthem. Equal constitutional honour does not equate to identical historical legacies.
Because the later stanzas refer to Hindu goddesses Durga, Lakshmi and Saraswati, there have been persistent concerns about religious conscience. Competing considerations were accommodated even before Independence.
In 19 37, the Congress Working Committee formulated under Mahatma Gandhi and Rabindranath Tagore agreed that only the first two stanzas could be sung at functions of national import.
When Dr Rajendra Prasad stated on January 24, 19 50 that Vande Mataram would be given equal honour with Jana Gana Mana, he retained that middle path without demarcating the limits of the National Song.
Somebody who chooses not to sing the later stanzas respectfully, out of conscientious objections, may neither have the intention to disrespect nor the intention to cause disturbances. Bijoe Emmanuel established that such silence, in the absence of any obstructive act, cannot invoke Section 3.
Yet, the Bill lacks such an exception. It enlarges liability without specifying what constitutes the offence.
The Need for Legislative Clarity
We recommend that the proposed amendment provide statutory protection to Vande Mataram. The constitutional question does not turn on that legislative decision. It turns on the fact that Section 3 continues to fail to define either the conduct that amounts to the offence or the circumstances in which criminal liability accrues.
The principle of legality requires criminal offences to be clearly defined. When essential ingredients of an offence are undefined, their meaning is left to be constructed by the courts.
Undefined ingredients breed uncertainty in application of the law and heighten the risk of arbitrary enforcement and constitutional challenge. The better course would be to draft the provision with greater clarity.
What Greater Clarity Should Accomplish
To the extent Parliament wants Section 3 to apply to the National Song, it should define the offence more clearly. At the very least, criminal liability should be limited to cases involving deliberate obstruction or demonstrable disorder.
Respectful silence, conscientious abstention and religious objection should remain distinguishable from conduct involving coercion, disruption or an intentional effort to dissuade others from observing the National Song.
National symbols are entitled to legal protection. But that protection must be afforded through legislation which provides clear guidance about when criminal liability attaches.
Parliament can provide statutory protection to Vande Mataram if it defines with greater specificity the conduct which attracts criminal liability under Section 3.
Frequently Asked Questions
1. What does the proposed Vande Mataram amendment aim to do?
The Vande Mataram amendment would expand Section 3 of the Prevention of Insults to National Honour Act, 1971 to cover the National Song. If passed, it could criminalise intentional disruption to, or intentional prevention of, singing of Vande Mataram.
2. Why must the offence be clearly defined prior to criminalisation?
Laws that impose criminal sanctions must state what conduct will attract punishment. Penal provisions drafted using indefinite expressions such as “intentionally prevents” or “causes disturbance” are vulnerable to misuse due to overzealous enforcement.
3. Can an individual be punished for simply refusing to sing Vande Mataram?
Courts have recognised a distinction between respectfully choosing not to sing and intentionally causing obstruction to those who choose to sing the National Song.
4. What was the decision of the Supreme Court in Bijoe Emmanuel?
The students had willingly stood at attention during the singing of the National Anthem but had refused to sing on the ground of religious conscience. The Supreme Court ruled that they could not be punished simply for not singing along.
5. Do phrases such as “causes disturbance” have a defined meaning under Section 3?
Section 3 does not spell out what is meant by phrases such as “causes disturbance” or “intentionally prevents”. Interpretation is left to the courts to determine.
6. Could such an amendment raise freedom of speech concerns?
Potentially. Freedom of speech and expression under Article 19(1)(a) may be implicated if a vaguely written criminal provision is interpreted too widely.
7. Could a person who objects to singing Vande Mataram on religious grounds be protected?
Yes, if they refrain respectfully without obstructing, disturbing or coercing others. Constitutional protections relating to conscience and religion may become relevant where the conduct consists of quietly choosing not to sing.
8. Why are freedom of religion provisions relevant to singing Vande Mataram?
Articles 25 and 26 concern freedom of conscience and religious freedom. These constitutional protections may become relevant where a citizen objects to being compelled to sing on grounds of religious belief.
9. What must Parliament define if it intends to criminalise disruption of Vande Mataram?
It must clearly define what constitutes intentional disruption or prevention of singing and distinguish it from respectful silence, religious objections and conscientious non-participation that does not affect others.
10. Could Vande Mataram be protected without creating a vague criminal offence?
Yes. Parliament can protect the dignity of the National Song while specifying with precision what behaviour will attract criminal punishment.
Conclusion
Parliament can well enact that Vande Mataram shall be protected by law. But if that is to be a penal offence then it must be stated in clearly defined terms.
Words like “intentionally prevents” and “causes disturbance” must not be left vague where the penalty provided is imprisonment. There must be something to distinguish between obstruction and respectful silence, and between abstention as a matter of conscience or religion.
The dignity of the nation and freedom under the Constitution are not matters which are incompatible with each other. Both are capable of being upheld by definite provisions.
