Debate Over Criminalising Non-Singing of the National Song

The Constitution does not explicitly create a 'National Song'. Article 51A(a) casts a fundamental duty on every citizen to abide by the Constitution and respect the National Flag and the National Anthem, but it is silent on any song beyond the Anthem. Freedom of expression under Article 19(1)(a), read with the freedom of conscience under Article 25, has historically protected a citizen's right to decline participation in patriotic rituals, provided she does so respectfully. For over five decades, the Prevention of Insults to National Honour Act, 1971 penalised insult only to the National Flag, the Constitution and the National Anthem. Vande Mataram was kept outside this penal net. It was honoured by usage, not enforced by law.

Vande Mataram was composed by Bankim Chandra Chatterjee around 1875 and later placed within his novel Anandamath. Its opening two stanzas, a hymn to the land's rivers and breezes, could be sung by any citizen regardless of faith. The later stanzas, added with the novel, address the motherland as the goddesses Durga, Lakshmi and Saraswati. After the Partition of Bengal in 1905, the song's opening words became the rallying cry of the Swadeshi Movement, and the tension between its secular and theological halves entered Indian politics from that point onward. In October 1937, the Congress Working Committee, on a resolution moved by Rajendra Prasad and seconded by Vallabhbhai Patel, resolved that only the first two stanzas would be sung at national gatherings, acknowledging objections raised by Muslims and others to the later verses. Rabindranath Tagore, who had first set the song to music, endorsed this compromise. On January 24, 1950, President Rajendra Prasad declared Jana Gana Mana the National Anthem, while Vande Mataram would be 'honoured equally' as the National Song, a status of convention rather than compulsion.