Vande Mataram and the right to dissent

Parliament has given Vande Mataram the same criminal-law protection long enjoyed by the national anthem. But a closer look at the Constituent Assembly’s own reasoning, the actual text of the new law, and the Supreme Court’s judgment in Bijoe Emmanuel v. State of Kerala (1986) suggests that the position is far less settled and far more protective of individual conscience than the political rhetoric around the amendment implies.Why it was not the anthemThe question of India’s national anthem was left open for nearly the entire life of the Constituent Assembly. It was finally settled not by a vote, but by a presidential statement on January 24, 1950, at the Assembly’s last sitting, when Dr. Rajendra Prasad declared that Jana Gana Mana would be the National Anthem of India, and that Vande Mataram, “which has played a historic part in the struggle for Indian freedom, shall be honoured equally with Jana Gana Mana and shall have equal status with it.”That formula is worth reading carefully, because what it conspicuously does not do is make Vande Mataram the anthem or even a co-anthem. The Constitution, when it came into force two days later, contains no reference whatsoever to a “national song”. The status of Vande Mataram rests entirely on Dr. Prasad’s 1950 statement and on subsequent convention, and nothing more.The reason for this restraint lies earlier, in the Indian National Congress’s own reckoning with the song in the 1930s. Vande Mataram’s later stanzas, rarely sung today, invoke the motherland in explicitly devotional, goddess-centred terms. In the context of the 1882 novel Anandamath, from which the song is drawn, some of its verses were also read as casting Muslims as adversaries. Objections from the Muslim League and others led the Congress Working Committee, in October 1937, to resolve that only the first two stanzas — pastoral, secular in imagery and free of any reference to a deity — would be sung at official gatherings.That 1937 compromise is what Dr. Prasad’s Constituent Assembly statement inherited and preserved in 1950: full-throated reverence for the song’s role in the freedom struggle, but a deliberate decision to keep its more contentious, devotional verses out of India’s civic and constitutional life. It was not an oversight. It was a considered choice, made at the highest level of the Republic’s founding, precisely to avoid entangling the machinery of the State with a religious idiom that a section of Indian citizens could not, in conscience, be asked to embrace.What the amendment saysThe Prevention of Insults to National Honour (Amendment) Bill, 2026, was introduced in the Rajya Sabha on July 24, 2026, and cleared both Houses within a week. The Rajya Sabha cleared it on July 29 and the Lok Sabha on July 30, each after only a brief discussion, with the Opposition, including the DMK and Congress, raising strong objections about the Bill being used to advance a particular cultural agenda and about the timing amid unrelated protests in the House. It received Presidential assent shortly after.Given the speed and thinness of the debate, the Amendment — one of 12 Bills passed in a Monsoon Session in which, by Parliament’s own record, most legislation went through with barely any discussion — has had remarkably little parliamentary scrutiny for a law that touches on religious sentiment, free expression and criminal liability all at once.What the Amendment actually does is narrower than the headlines suggest. It substitutes Section 3 of the 1971 Act with a provision that punishes two things, and only two things, in relation to both the national anthem and the national song: intentionally preventing their singing and causing disturbance to an assembly engaged in singing them. The punishment — up to three years’ imprisonment, a fine, or both, with a mandatory minimum of one year for repeat offenders — is now common to both compositions.Here is the question mark worth putting squarely to the government: nowhere does the amended Act say which stanzas of Vande Mataram must be sung, or that all six stanzas must be sung, for the law’s protection to apply. The statute does not prescribe a mandatory version of the song at all. It does not compel singing in the first place by anyone, of any stanza.All the amended Section 3 requires is that if the national song is being sung, at whatever length and in whatever form, that rendition must not be intentionally prevented or disturbed. That is a materially narrower obligation than the political framing around the Bill — including the government’s own push, since late 2025, to popularise and even mandate all six stanzas at official functions — might lead the public to believe. The law penalises disrespect and disruption of a performance; it does not, on its text, mandate participation in one, nor does it fix which version of the song is entitled to protection.The later stanzasThat gap between political messaging and statutory text matters enormously once the actual content of the song’s later stanzas is examined.The commonly sung opening stanzas of Vande Mataram describe the motherland in pastoral terms, her waters, her fruit, her cooling breezes, her fields. It is the later stanzas, historically dropped from public renditions by the Congress in 1937 but increasingly promoted for full recitation since the government’s commemoration of the song’s 150th anniversary in late 2025, that shift register entirely.In substance, and in every available English rendering, they describe the motherland as embodied in the Hindu goddesses Durga, Lakshmi and Saraswati, respectively, goddesses of power, wealth and learning, and speak of her as an object of worship enshrined in temples, with “crores” of arms raised in her defence. This is not patriotic verse loosely coloured with cultural reference; on a plain reading, it is a devotional address to a deity, structured in the grammar of prayer.That is precisely why India’s freedom-movement leadership chose, as early as 1937, to separate this material from the version sung at public and official occasions, and precisely why the invocation of Durga, Lakshmi and Saraswati by name is not a detail that can be waved away as incidental to the present controversy.Freedom of conscienceIndia is constitutionally committed to a plurality of faiths: Hindu, Muslim, Christian, Sikh, Buddhist, Jain, Parsi and others, each entitled under Article 25 to freedom of conscience and the free profession, practice and propagation of religion, and under Article 26 to manage its own religious affairs without State interference.For adherents of monotheistic faiths in particular, being required, whether by direct compulsion or by the coercive pressure of a criminal statute looming over any public assembly, to stand through or refrain from disrupting an extended recitation addressed to Hindu goddesses raises a genuine and serious constitutional difficulty. A citizen’s discomfort with participating in what is, on the text, an act of worship of deities outside their own faith is not eccentric; it is exactly the kind of conscientious objection that Articles 25 and 26 exist to protect.Articles 25 and 26 are fundamental rights. It is a basic proposition of Indian constitutional law that no ordinary legislation, however patriotically framed or however overwhelming its parliamentary majority, can override a fundamental right. A law that has the effect of pressuring citizens, on pain of criminal liability for anyone thought to be “disturbing” its recitation, to acquiesce in a devotional performance contrary to their faith would not survive that Part III scrutiny. The 2026 Amendment does not, fortunately, go that far on its text, but the danger, as the next section shows, lies in how it may be applied.The Bijoe Emmanuel rulingThis is not an abstract or first-time question for Indian courts. It was addressed directly and decisively in Bijoe Emmanuel & Ors. v. State of Kerala (1986), a case that remains the single most important precedent on the collision between compelled patriotic ritual and freedom of conscience.Three siblings, Bijoe, Binu Mol and Bindu Emmanuel, practising Jehovah’s Witnesses, stood respectfully and silently while their schoolmates sang Jana Gana Mana during morning assembly. They did not sing themselves because their faith forbade what they understood as an act of worship of anyone or anything other than god. For this, they were expelled.The Kerala High Court upheld the expulsion, holding that Article 51A’s fundamental duty to respect the national anthem overrode any claim under Articles 25 and 26, and that Jehovah’s Witnesses could not even invoke those protections.The Supreme Court, in a judgment authored by Justice O. Chinnappa Reddy, reversed the High Court in emphatic terms. The Bench held that compelling a person to join in singing despite a genuine, conscientiously held religious objection contravenes both Article 19(1)(a) — freedom of expression, which the court held extends to the freedom to remain silent — and Article 25(1), the guarantee of freedom of conscience.Crucially, the court held that the fundamental duties enumerated under Article 51A cannot be used to cut down or override the fundamental rights guaranteed under Part III of the Constitution; a duty to respect national symbols cannot, in law, be turned into a licence to punish sincere religious dissent. The court also read the 1971 Act itself as requiring nothing more than respectful conduct, not active participation from anyone present. It closed with the observation that the country’s tradition, philosophy and Constitution alike “practise tolerance,” urging that this not be diluted.That ruling has never been overturned, and its logic transfers with full force to Vande Mataram, arguably with greater force, given that the song’s later verses are, unlike the anthem, addressed to specific deities. If the Supreme Court held that a Jehovah’s Witness could not be compelled to sing a secular anthem against conscience, the same protection must extend, a fortiori, to a citizen who objects to reciting verses that are, on their face, prayers to Hindu goddesses.Legal positionPut together, the three strands here point to a single, clear conclusion.First, the Constituent Assembly and the country’s founding leadership deliberately confined official recognition to the first two, secular stanzas of Vande Mataram. That is precisely why the fuller, devotional version was never made compulsory, then or since.Second, the 2026 Amendment, whatever its political framing, imposes no textual obligation on any citizen to sing any particular version of the song, let alone all six stanzas. It penalises only the prevention or disturbance of a singing that is already taking place.Third, and most importantly, even where the song, including its later stanzas, is sung, a citizen who chooses not to join in because doing so would offend their freedom of conscience under Article 25 is under no legal obligation to participate.The law as laid down by the Supreme Court in Bijoe Emmanuel gives that citizen complete protection: standing respectfully, in silence, without disrupting others, is not an offence under this Act, was not an offence under the original 1971 Act, and cannot be made one merely by extending the statute to a new composition.Citizens uneasy about the fuller version of Vande Mataram do not need to wait for a court to vindicate them after the fact. The law, correctly read, already protects them.(Haris Beeran is a Rajya Sabha MP and a lawyer)