This article is written by Neelam Prusty, from Madhusudan Law College, Odisha. This article explains the whole case of Vande Mataram. The article points to the wrong made by the High Court of Madras while deciding the writ relating to Vande Mataram.

Introduction

The High Court has the power to decide a matter and protect the fundamental rights of the Constitution. But the high court has no power to make any changes to the Constitution of India. Before some time, the High Court of Madras made it compulsory for every citizen to play and sing the “Vande Mataram” as the national song of India. The order flashed over the newspaper of every local and national newspaper. It became a debatable topic all over the country among journalists and jurists. The order of the court to decide on such a matter seems to be beyond its jurisdiction. The question of the origin of Vande Mataram was extended to violate the fundamental rights of the citizens. The whole matter was a hot topic for a long time. The decision of the High Court was so covered because it was a controversial situation and the Supreme Court has the power to decide on this. But a few years back, the Supreme Court had stated that there is no compulsion to sing the national anthem even though the national anthem has its identity under Article 51A of the Constitution.

Origin of Vande Mataram

The story of Vande Mataram was started long before the Independence of India. In 1870, a learned Bengali author named Bankim Chandra Chattopadhyay had written a beautiful song that would give a glance of a glorified and developed nation. The song titled Vande Mataram was not sung in public until it was published in the novel named Anandamath in 1882. The song “Vande Mataram” gained an identity with the struggle for India’s freedom. At the time, when Anandamath was written,  our country was under the rule of the British Empire and was suffering from cultural, religious, and intellectual suffocation. The novel “Anandamath” was such powerful literature that would stir nationalistic feelings in the minds of the countrymen.

After the partition of India in 1951, the Constituent Assembly decided to declare Jana Gana Mana written by Rabindranath Tagore as the national anthem of India. The song “Vande Mataram” had failed as the national anthem due to its strong religious content and India was declared as a secular nation rather than a Hindu nation. Since Vande Mataram was still a strong competitor to Jana Gana Mana, it was later honoured as the national song of India but it failed to get the constitutional identity as the national anthem and national flag. 

Case background

In 2013, the Teacher Eligibility Test had a question regarding the original language of the song ‘Vanda Mataram’. The favourable options were Sanskrit and Bengali. A teacher aspirant named K. Veeramani has opted for the answer as Bengali which was marked wrong by the Teacher Recruitment Board. According to the Teacher Recruitment Board, Vande Mataram was originally written in Sanskrit which was later translated to Bengali by the Bengali author, Bankim Chandra Chattopadhyay. Since the minimum mark was 90 to qualify for the test, the teacher aspirant got 89 and failed to get one mark on the question regarding the original language of Vande Mataram. Soon after he filed a writ petition in the High Court of Madras seeking the court to determine the language in which ‘Vande Mataram’ was originally written by poet Bankim Chandra Chattopadhyay. The issue of the petition was whether Vande Mataram was first written in Bengali or Sanskrit. The main object of the petitioner is to determine the language of the song “Vande Mataram” and get the one mark if the answer is right to be eligible for becoming a teacher.

Madras High Court decision and its analysis

The evidence of the original Vande Mataram was collected from Bengal, now in Bangladesh. After a lot of controversy and examination of evidence, Justice Muralidharan decided the petition in favour of the petitioner. He further directed the Teacher Recruitment Board to award the petitioner with one mark for the question. The Court clarified that the song was originally penned by Bankim Chandra Chattopadhyay as “Bondey Matorom” in Bengali. It was later translated into Sanskrit.

The court further ordered to play and sing the song once a week as a mark of respect and patriotism in every public and private school as well as the workplaces such as offices and factories. It was clearly stated that Patriotism is an essential element for the life of every citizen in the country. The citizens of the country should not forget the sacrifices of the people who fought for the freedom of the country. We should remember those who sacrificed their lives and families to the independence struggle. Nowadays, in modern times, we have developed ourselves with technology and have become busy in our own life. Sometimes we forget the nation and focus on our own life in a very selfish manner. In such tough circumstances, it is necessary to understand and learn our national song ‘Vande Mataram’ which builds a strong sense of belief and confidence in the mind of the citizens.

The order was further extended to the Director of Public Information to upload and circulate the translated version of ‘Vande Mataram’ in Tamil and English. It was made urgent to make the song available online on the Government websites and social media to reach every citizen of the country.

Criticism

The decision by the High Court of Madras made the national song compulsory for the citizens regardless of the fact that the national song has no constitutional status. The decision gave rise to a serious debate on the topic and many people as well as lawyers and journalists criticized the decision on the following points.

• No national song mentioned in Constitution

The Vande Mataram was repeatedly cited as the national song by the Madras High Court. But in the Constitution of India, there is no mention of “national song”, the constitution under Article 51(A) clause (a) of Part IV-A Fundamental Duties only speaks about the national flag and anthem. After the 42nd Amendment Act, 1976, it was made compulsory for the citizens of the country to respect the national anthem and national flag. The petition filed by Ashwini Upadhyay, a BJP spokesperson to include the national song in the Constitution is still pending in the Supreme Court.

• What if you’re unable to sing the Vande Mataram?

The Madras High court has imposed an order for the first time in legal history that creates an obligation for the citizens. According to the order, the citizens not only have to play the “national song” but also have to sing the “national song”. Despite the constitutional status of the national anthem, the Supreme Court declared no compulsion on the national anthem but the national song without any constitutional identity is being made compulsory. In the landmark case of Bijoe Emmanuel vs. State of Kerala (1987 AIR 748), the Supreme Court held that there is no compulsion to sing the national anthem when it is played. In 2019, the Supreme Court changed its order stating that it is not mandatory to play the national anthem before every movie shown in theatres nor the audience is bound to sing the national anthem.

• Who decides what reasons are valid for not singing the national song?

The Madras High Court came up with a conditional clause that if any person faced any difficulty in singing or playing the national song, they should not be forced to sing the song if they have any valid reasons for not doing so. But the Court didn’t explain clearly about the “valid reasons” and the authority to “force” the people to sing the song when there’s no “valid reason” for not singing or playing the song.

• Can courts rule on a question that a case does not raise?

The case was filed by K. Veeramani for correcting the marks obtained by him in Tamil Nadu Teachers’ Eligibility Test. The issue raised to clarify the originality of Vande Mataram. The one mark was very necessary for the career of the petitioner since the minimum mark was 90 out of which the petitioner had scored 89. The question of singing or playing the national song was nowhere mentioned in the petition. The court beyond the fact and issue of the case, unreasonably declared the national song to play and sing compulsorily by the citizens that would inculcate a sense of patriotism among people. The court also made it compulsory to be sung and played periodically in all institutions.

• The court order applies only to Tamil Nadu

The Madras High Court ordered the circulation of the national song in English and Tamil on every Government site and social media. The court did not direct that the song be translated into any other languages except Tamil and English. The National Song can not be confined to only one state, rather the nation refers to the state of India as a whole. The Madras High Court has no jurisdiction outside the state of Tamil Nadu, hence the decision on the national song is confined to only one state. Therefore, such a decision on a national matter is beyond the power of a High Court.

• High Courts are to secure the fundamental rights of citizens

The high courts of the country carry their powers under Article 226 of the Constitution of India. This Article empowers all the high courts to secure the fundamental rights of the citizens as guaranteed in the Constitution of India.  Since there is no mark of the national song in the Constitution nor “Vande Mataram” has Constitutional status, it can not be made compulsory to sing and play the national song by the citizens. Neither the fundamental right nor the fundamental duty considered the national song to mandate the singing or playing of ‘Vande Mataram’. Rather the compulsion of Vande Mataram is likely to affect the fundamental right of the citizen that includes the right to speech.

The criticism made it clear that the decision of the court was unreasonable and void. The court seems to misuse its power to make the playing and singing of national song compulsory. The act of the court is affecting the fundamental ideas of the Preamble as well as it is violating the fundamental rights of the citizen as conferred by the Constitution of India. Hence, the order can be challenged further in the Supreme Court and be declared null and void. Since a similar case relating to the constitutionality of national song is still pending in the Supreme Court, the judgment of the Supreme Court will be applied for every citizen of the country and not only the State of Tamil Nadu.

Conclusion

This was the first time in legal history that a court is deciding something unreasonably. The case had nothing to do with the song of Vande Mataram. But there is a lesson for the citizens to learn the history of India. According to my own point of view, I believe that the court has the power to order the citizens to play the national song periodically, but at the same time, the compulsion on singing the song is a violation of the fundamental rights of the citizen which the high court is responsible to maintain. The right to speak of the citizen can not be taken away from the citizen of the country except during an emergency. The Supreme Court has the ultimate power to decide on whether the national song must get a constitutional identity or not. The Madras High Court knowing the fact gave its decision beyond its jurisdiction when the same kind of case is still waiting for the decision of the Supreme Court. But the decision of the Supreme Court will prevail over the decision of the Madras High Court on the matter.

References

• https://www.hindustantimes.com/india-news/vande-mataram-of-sanskrit-origin-but-written-in-bengali-ag-to-madras-hc/story-eE29xYawHoQ0bKSowCr1EN.html
• https://www.newindianexpress.com/states/tamil-nadu/2017/jul/26/six-reasons-why-madras-high-courts-order-on-vande-mataram-is-extraordinary-1633931.html
• https://www.thehindu.com/news/national/tamil-nadu/national-song-should-be-sung-at-least-once-a-week-rules-madras-high-court/article19357794.ece

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