'Law Making Can't Be Per Naxalites,' Tushar Mehta Says at Supreme Court 'Vande Mataram' Hearing, Refuses to Apologise

New Delhi: A heated exchange took place in the Supreme Court on Tuesday (September 22) between Solicitor General Tushar Mehta and senior advocate S. Muralidhar during a hearing of Indian vocalist T.M. Krishna's challenge concerning the Union government’s mandate to sing all six stanzas of Vande Mataram, which he termed was against the secular character of the constitution.

An objection was raised by Muralidhar on Mehta’s use of the word “Naxalite” in referring to the petitioner’s views. Muralidhar demanded that the expression be withdrawn but the solicitor general refused, saying, "I said that is the constitutional way, not what the Naxalite wants. And I am not sorry about it."

The top court, at this point, also intervened to observe that a person objecting to one or all stanzas of Vande Mataram should not be subjected to "criminal consequences" by the state.

What did the petition say?

A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana was hearing a writ petition challenging the constitutional validity of the 2026 amendment to the Prevention of Insults to National Honour Act, 1971, which extends penal protection to the national song, Vande Mataram, as well as the Ministry of Home Affairs' directions mandating the singing of the full six stanzas of the song at official functions.

In his petition filed under Article 32, the renowned carnatic musician said that paras third to sixth of Vande Mataram expressly invoke devotion to Hindu deities, and mandating the singing of those portions violates the secular character of the nation.

“The Impugned State Action does not merely regulate national protocol or prescribe a uniform code of conduct for public functions. It compels a ceremony of assent to a symbol whose last four stanzas, Stanzas 3 to 6, are expressly devotional, deity-invoking and non-secular. By mandating the rendition of all six stanzas under penal sanction, the state transforms what is unquestionably a contested historical symbol into a compelled orthodoxy,” the petition read, citing that it was violative of the negative aspect of free speech recognised in Bijoe Emmanuel v. State of Kerala (1986).

Notably, according to the 2026 amendment, which substituted Section 3 of the 1971 Act, a person who intentionally prevents the singing of the National Anthem or National Song, or causes “disturbance” to an assembly engaged in such singing, can face imprisonment of up to three years, or fine, or both. It also mandates that where Vande Mataram and Jana Gana Mana are both sung or played, the national song is to precede the national anthem. 

Krishna, in his petition, argued that the home ministry’s January 28 and July 9 orders, when read with the amended provision, go beyond merely prescribing protocol for national functions and prescribe the complete six-stanza version as the "official version", thus providing for its mass singing at specified governmental, ceremonial and cultural occasions.

He also noted that Vande Mataram was never formally adopted by the Constituent Assembly as the "National Song", is not mentioned in Article 51A(a), and was not included within the statutory protection under the 1971 Act for more than five decades.

Also read: Behind the Official Celebration of Vande Mataram Is a Reality That Can't Be Ignored

The petition further noted that the undefined term “disturbance” in Section 3(b) of the amendment was “vague and overbroad”, and could have a chilling effect on scholarly criticism, artistic expression and teaching concerning the song's textual content and historical provenance, “particularly when contrasted with the express safeguard for criticism in Section 2 of the same Act relating to the National Flag and Constitution.”

The petition said that the amendment resulted in indirect discrimination on grounds of religion violative of Article 15(1), as recognised in Lieutenant Colonel Nitisha v. Union of India (2021) and offends secularism, a basic and unamendable feature of the constitution under S.R. Bommai v. Union of India (1994).

Terming the government’s move a “dog-whistle legislation”, it stated, “The State cannot mix religion with secular activities, yet the impugned scheme mandates compulsory, criminally enforced utterance of stanzas addressed to Durga, Lakshmi, and Saraswati as part of State protocol. This constitutes the encroachment of religion into secular State activity that Bommai held is strictly prohibited.”

What happened at the hearing?

According to LiveLaw, the bench orally observed that it is not within the remit of the Court to decide what the "national song" is, but that it will examine if the right of a conscientious objector to not sing it, as recognised in the Bijoe Emmanuel case, is protected.

The bench observed that it is expected that a person who does not sing the full six stanzas of Vande Mataram for religious reasons will not be subjected to penal consequences.

Senior advocate Muralidhar, for the petitioner, submitted that the amendment does not clearly define what the "national song" was, and this ambiguity can lead to misuse. He also noted that the Office Memorandum of the MHA had not been gazetted. 

Justice Bagchi pointed to the American national anthem, stating it uses the words "In God we Trust", though the USA is cited as a model of positive secularism. 

At this point, Solicitor General Tushar Mehta interjected to express disapproval of the petition saying "secularism cannot be this narrow". Muralidhar added that the amendment had been passed hastily without building any national consensus. To this, Mehta said "law making cannot be as per Naxalites' idea".

Muralidhar strongly objected to this, asking Mehta to "withdraw the expression you used just now”.

Mehta, however, maintained that he was referring to those who were not respecting the law-making process, and replied, "I said that is the constitutional way, not what the Naxalite wants. And I am not sorry about it."

Muralidhar objected again to the repetition of the word. “I am now going to register my strongest protest... To think is not to be a Naxalite," he argued.

Mehta, meanwhile, demanded the top court to issue a notice on the petition. This is when Justice Bagchi intervened, stressing the role of constitutional institutions and observing that even a person alleged to be a terrorist has equal rights under the constitution.

"Mr. Solicitor, we are not inclined to issue notice. But, we would expect that the law of the land, as declared by this Court in Bijoe Emmanuel, will govern the Act. What is the national song is not in dispute. The declaration of law in Bijoe Emmanuel is not yet questioned. It is for the democratic state to decide what is the national song, whether two stanza or four stanza. 

"But nobody who feels an infraction of Art. 25, 26 rights or a conscientious objector would be subjected to [penal consequences]. It's not the remit of the court to second-guess what is the national sentiments or aspiration associated with Vande Mataram. It is for the state. It is for a conscientious objector not to decide one or all stanzas, and [State is] not going to subject him to criminal consequences," Justice Bagchi said, as quoted by LiveLaw.

The top court has sought a response from the Union government on the petition.

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