The Supreme Court on Wednesday refused to hear a petition challenging a government circular issuing guidelines on singing Vande Mataram in schools and public places.
A bench consisting of Chief Justice Surya Kant and Justices Joymalya Bagchi and Vipul M Pancholi termed the plea filed by one Muhammed Sayeed Noori as "premature" and based on "vague apprehension of discrimination".
"This is a case of premature apprehension. Please come to us when you are discriminated against on the basis of the advisory," the court told the petitioner.
The bench emphasised that the circular was merely advisory in nature. "There is no threat to conform. It is only a protocol. There are no criminal consequences," Chief Justice Kant observed.
Senior advocate Sanjay Hegde, appearing for the petitioner Noori, said 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".
"If you face penal action, you have the right to come to court," the bench said, adding that no such situation had arisen yet.
Senior advocate Sanjay Hegde argued that compelling participation in singing the national song could infringe upon individual conscience.
He contended that "patriotism cannot be compelled" and raised concerns that social pressure could force people of different beliefs, including atheists, into what he described as a "demonstration of loyalty".
Hegde also drew a distinction between the national anthem and the national song, arguing that the Constitution does not place both on the same footing. According to the Home Ministry circular the National song must be played before national anthem.
He warned that a "three-minute national song" could overshadow the shorter national anthem, reducing it to an "epilogue".
"Nobody has asked you to do it in your academy. There are no adverse consequences," the Chief Justice said.
Justice Bagchi asked if the circular specified any penal consequences for not singing the national song or if any person had been removed from the congregation for not singing it.
"Penalty is there in case of disruption," Hegde said, "While there may be no legal sanction, there is always a huge burden for someone who refuses to sing or stand up. Can people be compelled to sing the song in the garb of an advisory?"
Chief Justice Kant asked Hegde whether any notice had been sent to the petitioner compelling anyone to sing the national song.
"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," Justice Bagchi said.
Justice Bagchi reiterated that the court could intervene if any discrimination occurred. "Is a mere advisory a breach? You have some vague apprehensions," he remarked.
Although Solicitor General Tushar Mehta said he was not formally appearing in the matter, he questioned whether citizens needed to be advised to respect the national song and referred to constitutional duties under Article 51A.
At the end of the hearing, the court rejected of the plea, reiterating that the challenge was premature in the absence of any concrete harm.
