The Supreme Court on Wednesday declined to entertain a plea challenging the Central government's recent guidelines for playing of national song Vande Mataram at government and public functions.
A Bench of Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice Vipul M Pancholi called the petition premature and also observed that the guidelines don't prescribe any penal consequences for non-compliance.
CJI Kant further remarked that the guidelines were only a protocol and there is no compulsion to follow them."We will hear all this when there are penal consequences or (singing is) made mandatory. This notification is advisory. No penal consequences also," the Bench said.We will hear all this when there are penal consequences or (singing is) made mandatory. This notification is advisory. No penal consequences also.
The Court was hearing a plea moved by one Muhammed Sayeed Noori, who runs an academic institution.Senior Advocate Sanjay Hegde, representing the petitioner, said that penalty is there in case of disruption."There is always a huge burden for someone who refuses to sing or stand up. In the garb of advisory people can be compelled to sing along," Hegde said.
However, Justice Bagchi asked whether there existed any penal consequences for non-compliance. "Does the January 28 notification lead to penal consequence? Is the person removed from the congregation if they don't sing the same," the judge asked.CJI Kant asked whether the petitioner was being forced to play the national song.
"Show us the notice sent to you compelling you to play the national song . You run a school, we don't know whether it is recognised or not also."Justice Bagchi pointed out that the guidelines use the word "may", implying the non-mandatory nature of the advisory."Clause 5 of the Union government direction says "may". This freedom is as much to sing as much not to sing. That is why it does not fall foul of the Bijoe Emmanuel," the judge said.
CJI Kant also made a similar observation."There are no penal consequences and no one is compelling you to do this in your academy," he added.Hegde referred to an earlier order for playing of national anthem in theaters.
"Keep the petitioner aside for moment. I am on Justice Dipak Misra judgment. Many of us don't watch films much. But after that judgment many of us stopped going to the theatre. Patriotism cannot be compelled," he said. Justice Bagchi said that it is just a point of view and people may differ with it. In response, the senior counsel said,"The Constitution has to protect individual conscience."
Justice Bagchi then said that the petitioner can approach the Court again when there is any discrimination."We have to see if a mere advisory [is] a breach of constitutional right. This is just a vague apprehension of discrimination which does not have a reasonable nexus with the impugned notification," he added.
Continuing with his submissions, Hegde said that a 3-minute national song overwhelms many in comparison to the 55-second national anthem."When it is played together.. the national song is played first and thus the anthem becomes an epilogue to the national song. There are enough citizens who will feel the pressure to conform," he said.
However, the CJI said that the guidelines are only a protocol for playing of the national song."We have a national flag protocol also. It has been made very liberal," CJI Kant said.Hegde responded that tomorrow there may a different government in power and that it just takes a bureaucrat in the Union Home Ministry to pass some other direction.However, Court was not convinced with the arguments at the stage.
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