Supreme Court refuses to consider plea against Home ministry's circular on 'Vande Matram'

New Delhi: The Supreme Court on Wednesday refused to consider a plea against a Home Ministry circular on singing the national song Vande Mataram at official events, saying the directive was not mandatory and the petitioner’s concerns were only “some vague apprehensions of discrimination.”

A bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and Vipul M Pancholi told the petitioner, Muhammed Sayeed Noori, represented by senior advocate Sanjay Hegde that the plea is premature and that if he were to face any penal action, he may approach the court.

When the petitioner's counsel insisted that patriotism cannot be compelled, the apex court asked, “It can't be compelled even for the national anthem?"

Hegde submitted that they respect every religion in the country, but if people are compelled to sing the song irrespective of their religion and faith, some may find it a compulsion to participate in the “social demonstration of loyalty.”

Solicitor General of India Tushar Mehta, who was present in the court for another matter, said, “Do we need to be advised to respect the national song?”

The bench told Hegde, “Please come to us as and when you are discriminated on the plank of the advisory, in an atmosphere where you are being singled out. There is no threat to conform.''

The Solicitor General pointed out, there is a sense of respect for certain national emblems.

The bench said, ''you have been right to indicate it does not include a national song…the national song is as much an expression of the species of national identity. You may have a different point of view.”

“Clause 5 of the Union Government directive says ‘may’. This freedom is as much to sing the national song as not to sing. That is why it does not fall foul of legal rights,” the bench said.

The court said it seems the petitioner has some vague apprehensions of discrimination, which do not have a clear nexus with the impugned memorandum or impugned directive.

Hegde said there are enough citizens who will feel the pressure to conform.

“Pressure of what? This is only a protocol… the word is when it is playing. When it is played, what is the protocol you will do…we have a national flag protocol also. That has been, of course, subsequently and rightfully made very liberal….if you want to fly the national flag, what are the things you have to observe,” the bench asked.

Hedge said the national flag is at least protected by the Emblems Act, and there is no legal framework for the national song.

The bench said there is nothing mandatory; whenever a direction is mandatory, it must be visited with penal consequences, and where are the penal consequences in this advisory?

“That you will be removed from the congregation and you will not be permitted to participate,” the bench said.

"Tomorrow, if there is another government, there were three songs which were considered for the national anthem: Vande Mataram, Jana Manag gana, and Sare Jahan se accha,” he said.

“Now, if a government said now let’s have that also as a national song. All that I had to do its bureaucrat in the home ministry to pass a similar advisory. Therefore, the lack of a legal framework for the national song,” he further argued.

The bench observed that this argument could be appreciated when it is mandatory with penal consequences.

“That part is completely conspicuously silent, and there are no penal consequences, and there are no sanctions. There is no requirement saying you must follow it, It is optional,'' the bench said.

Hedge said it is a general advisory, and the court may put the matter to rest by stating it is only an advisory, not mandatory, and that there is no legal framework, making his client's petition premature for now.

“Why should we mention all these things (in the order) unless you point out that there is a legal framework,” the bench said. Hegde said there is no legal framework. The court said if you face any penal action, then you have a right to come to the court.

Mehta said a person who says that patriotism cannot be compelled and “if that is the ideology”.

Hegde replied that it is the highest form of patriotism and the Constitution is for all, and it does not depend on where you stand politically or where you stand religiously.

The bench asked whether patriotism cannot be even compelled for the national anthem? Hegde said patriotism per se cannot be compelled, and the Constitution has to protect individual conscience, and that is our national parchment, and our tradition teaches tolerance.

The court said it is a point of view, and many people differ on it. Hegde said if there is an advisory without sanctions, there are more ways that the advisory is enforced and also threatened to conform.

The court, however, remained unconvinced and declined to entertain the plea.