Centre’s Vande Mataram circular is ‘purely advisory’ with no penal threat: Supreme Court

“What is mandatory? Nothing is mandatory? The circular is an advisory,” said Justice Bagchi.

The CJI added, “It is purely advisory in nature.”

Justice Bagchi said, “Whenever a direction is mandatory, it must be visited with penal consequences. So, where is the penal consequence in the circular, that you will be removed from the congregation, or your institution will be derecognised? Such directive is there? Or at least we have not been able to read.”

The court drew a parallel with the landmark Bijoe Emmanuel case, where students were protected for standing respectfully during the national anthem without singing.

Hegde said, “While there may not be a legal sanction, there is always a huge burden for somebody who refuses to sing, or refuses to stand up.”

CJI Kant said, “What is that burden in law, we want to know…You are running some academy, we don’t know if it recognised. Where is the notice to you that you are compelled to play the national song?”

The CJI added, “The circular only prescribes a protocol (for) how the national song is to be played. We can understand if somebody is issuing notice to you saying look here, your academy has not played, therefore why it should not (be) closed, derecognised, etc.”

Court highlights that circular uses the term ‘may’

Justice Bagchi pointed out that Clause 5 under the head ‘Mass Singing of the National Song’ in the circular says that “in all schools, the day’s work may begin with the community singing of the national song”. “The word used is may,” he pointed out.

Hegde said, “What we have in this country is equal respect for every religion. If by any means, even under the garb of enforcing an advisory, people can be compelled to sing along, those of us citizens, irrespective of religion, the atheists, everyone who then feels compelled to participate in a social demonstration of loyalty, which goes against one’s conscience…”

Justice Bagchi, while again referring to Clause 5, said, “That is where, in our understanding, it does not fall foul of the fundamental freedom of expression. Because the expression is as much to sing as not to sing. Left to the individual conscience in this regime.”

The CJI added, “There are no adverse consequences attached to it. Nobody asked you to sing it in your academy.”

Hegde said patriotism cannot be compelled, to which the bench asked if it cannot be compelled even for the national anthem.

Justice Bagchi said, “It’s a point of view. Many people may differ on it, but it’s a point of view.”

Hegde said, “Ultimately, if the Constitution has to mean anything as far as an individual is concerned, it has to protect an individual’s conscience. That is our national parchment. We tolerate… If there is what is called an advisory, without sanctions, there are more ways that an advisory is enforced.”

Justice Bagchi said, “Please come to us as and when you are discriminated on the plank of the advisory…”

Hegde stated that he views the advisory as a threat to conform.

But Justice Bagchi said, “There is no threat to conform. There is only an advice.”

The CJI said, “This is only a premature apprehension.”

Justice Bagchi added, “We just feel that you have some vague apprehensions of discrimination which does not have a clear nexus with the impugned circular.”

Hegde said, “A three-minute national song overwhelms a 55-second national anthem. The advisory says that when the national song and the national anthem are played, the national song will be sung or played first. So, therefore, the national anthem becomes an epilogue to the national song.”

“You may say it’s only an advisory. More or less, there are enough citizens who will feel the need to conform,” added Hegde.

The CJI reiterated that there is no mandatory direction and added, “If you have any penal action, you have the right to come to court.”

Advisory not necessary, says Solicitor General

The hearing also saw a sharp exchange between Hegde and Solicitor General Tushar Mehta, who was present in the court, intervened and said, “Do we need to be advised to respect the national song? An advisory should not be necessary.”

“If a person says that patriotism cannot be compelled.. then he does not deserve to be entrusted with the writ of this court,” said Mehta.

Hegde said, “I say it is the highest form of patriotism. The Constitution is for all. It does not depend on where you stand politically, religiously. This (the SG’s submission) is performative.”