Vande Mataram Legal Protection

 

Legal Questions to be answered

1 No mentioning of National Song in Fundamental Duties ,  Doctrine of ejusdem generis can be  helpful.

 

Or amendment in the constitution of India is the only solution

 

Why National Song was not mentioned Fundamental Duties  along with National Anthem despite the decision of Constituent Assembly on 24 Jan 1950?

 

Apex court has already refused to grant indulgence on the ground that national song is not mentioned in fundamental Duties

 

2 No explicit mentioning of National song in Act 1971,  whether “etc ”  can be interpreted invoking Doctrine of ejusdem generis

Or explicit mentioning of National Song by way of amendment is better remedy.

Why National Song was not mentioned in Act 1971 along with National Anthem  despite the decision of Constituent Assembly on 24 Jan 1950?

 

3  Will Executive order  in the above mentioned situation can pass the test under the reasonable restrictions Under Article 19 of  Constitution of India in absence of statutory provision?

 

4 Will Executive order  in the above mentioned situation can pass the test of secularism  Article 25 of  Constitution of India ?

 

 

 

 

 

Respect to National Song is an expression of gratitude to Constitution of India

 

 

1-The Prevention of Insults to National Honour Act 1971

 

Executive order by Ministry of Home Affairs ,Union of India set forth the guidelines on the national song that is Vande Mataram. Thr executive order is divided into four parts. First, the authoritative version of Vande Mataram secondly singing or playing of national song in  group or the collective singing. And the last cast a duty on the audience to remain stand to attention during playing or  singing of the national song.It is widely reported in the media that there is an attempt by NGO – All India Muslim Personal Law board to pedal misinformation to the effevt that this order demands compulsory singing of national song. Whereas the fact is that it prescribes a duty to remain stand up during the singing or the playing of natural song- Vande Mataram.There is also an attempt by the people opposing the guidelines that it is not mentioned in The Prevention of Insults to National Honour Act 1971. Careful reading of the Act 1971, explicitly  mentions in section 3 Singing of national Anthem , etc.

3. Prevention of singing of Indian National Anthem, etc.—Whoever Intentionally prevents the singing of the Indian National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

 

The heading of the section 3 can be only understood by adverting to the proceedings of the Constituent Assembly Debates dated  24th, January 1950, where the president of the constant assembly  equated Jan Gan, Man  And Vande Mataram. This historical decision forms the base and  the foundation of the clear understanding and  appreciation of status of  Jan Gan Man and Vande  Mataram .

Dr Rajendra Prasad,the president of  Constituent Assembly on 24 January 1950, made the following statement which was also adopted as the final decision on the  National Anthem and National Song:

...”The composition consisting of words and music known as Jana Gana Mana is the National Anthem of India, subject to such alterations as the Government may authorise as occasion arises, and the Song Vande Mataram, which has played a historic part in the struggle for Indian freedom, shall be honored equally with Jana Gana Mana and shall have equal status with it”

 

That there is no statutory provision on National song Vande Mataram is untenable, illogical and misleading. There can be a ground. That national song is not explicitly. Mentioned in 1971. The word etc used in heading of the section three of the act 1971 is warrants  statutory tools of interpretation . Doctrine of ejusdem generis lends help  to guide on this subject matter for understand the logical conclusion.

 

Article 19 of the Constitution of India

 

The other argument that the Article 19 accounts for  reasonable restrictions to the effect that reasonable restrictions can be imposed by the legislation in the form of  statute and not by executive order this  having been decided in the khadak Singh case. National Songs qualifies  the legal requirement, because Article  1971 provides for statutory protection to the National Anthem and  “etc” can be interpreted only referring to  National Song Vande Mataram adverting to the equivalence in terms of place and respect in the decision of 24 Jan 1950.

 

Article 25 of the Constitution of India

 

 The  Article 25 of the constitution of India accounts for  freedom of religion sought to be  to be invoked by a  section of Community  to peddle fake news of compulsory singing of National Song .

 

Fundamental rights  needs to be  appreciated  in terms of constitutional morality, which includes Liberty, equality, and fraternity. Dr  Ambedkar on 25, November1949 said that  trinity of the liberty, equality and fraternity is based on the foundation of  fraternity. He explains social democracy that it  means “a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are  not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor  can liberty and equality be divorced from fraternity. Without equality, liberty would  produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty equality could not become a natural  course of things.”

 

 Vande Mataram is not composed recently. It carries a history of Indian culture of praising nation in the form of the mother and old Civilization. A Legacy of struggle heritage of personification of the nation like  in  India- Bharat Mata is not restricted to India only . World view sets forth personification nation in the form of mother land or fatherland like England –Britannica,Russia-Holy Russia,Ireland-Kathleen Ni Houlihan,Germany –Germania.

Opposition of National song reminds the remarks of Dr. Ambedkar on 7 Dec 1948 during the Constituent Assembly debates “ unfortunately the religions which prevail in this country are not merely non-social; so far as their mutual relations are concerned, they are anti-social, one religion claiming that its teachings constitute the only right path for salvation, that all other religions are wrong. The Muslims believe that anyone who does not believe in the dogma of Islam is a kafir  not entitled to brotherly treatment with the Muslims.”

 

Historical Process of Assimilation

During Constituent Assembly Debates  Dated 8 Dec 1948 S Santhanam  said  that the historical assimilation has been the key feature of Indian civilization ,hence opposition to the national song  Vande Mataram is against the philosophy of historical assimilation. Again, the during Constituent Assembly  Debates on Objective Resolution  Dated 21 Jan 1947 R Dhulekar  said that the Indians owned Babar, Humayun and Akbar to the extent they identified themselves with India.

 

 

 AIMPLB follows the scheme of the Islam which is anti social, undemocratic and anti national in approach as well as against the principles of constitutional morality. Opposition of AIMPLB  is also  against the historical process of assimilation . There is no disagreement on the fact that six philosophies  of Bharat signify mutual respect  with reciprocity instead of mutual tolerance. Six philosophies are  Samkhya, Yoga, Nyaya, Vaisheshika, Mimamsa, and Vedanta. Bharat can boast of six school of philosophies asmuch as philosophies  flowing like rivers parallel to each other, which signifies   peaceful, co-existence and the spirit of freshness into inquiry of  unknown. This phenomena is best referred as historical process of assimilation where violence and bigotry  have no place in the scheme of the culture and civilization.This is the distinct feature of United Bharat for which the struggle for independence was waged against the British empire. But unfortunately conflict of two civilization resulted into partition of United Bharat .

 Creation of Pakistan can be seen in two ways. First, the conflict between the natives of this ancient land and the invaders professing the practices , religion etc  not in rhythm with the natives following Sanatan Dharm. Second is the compromise in the form of parting with the idea of United Bharat. The logo of Constituent  Assembly represents United Bharat. But the question unanswered, whether the imposed partition achieved the goal.The answer is always in negative today. After seven decades, there is a pressing need to do introspection with honesty and sincerity because vote bank based analysis which will result in dire consequences.The Muslim should  respect the compromise of the Hindus in terms of the Partition of United Bharat and willingly and voluntarily participate in the historical process of assimilation for mutual coexistence.Absence of such gesture will always be seen with fear, speculations by the natives of this ancient land.

VandeMataram in calligraphy copy of the constitution of India and 15 August 1947

Historical process of assimilation aims to learning harmony, mutual respect.AIMPLB  stands exposed and behaving like Jinnah who sow the seeds of division which culminated in partition of United India. One of the illustrations illuminating  the calligraphy copy of constitution by the Nandlal, Bose refers to the naokhali riots which reminds that all future attempts of  division of India must be nipped at the bud. Also the description of the India in the calligraphy copy of the constitution of India  is in the form of Mother India – Bharat Mata to the effect that Netaji Subhash Chandra Bose and other Freedom fighters fighting from outside India to liberate Mother India (Bharat Mata in Hindi) is the description of the illustration depicting Netaji Bose . Therefore Vande Matam is nothing but praising the Mother India .

 

15 August 1947

 

SINGING OF VANDE MATARAM

Mr. President: The first item on the Agenda is the singing of the first verse of VANDE MATARAM. We will listen to it all standing.

Shrimati Sucheta Kripalani (U.P.: General) sang the first verse of the VANDE MATARAM song.

 

SINGING OF NATIONAL SONGS

Mr. President: The next(last) item is the singing of the first few lines of Sare Jahan se Achcha Hindustan Hamara and the first verse of Janaganamana Adhinayaka Jaya He.

(Shrimati Sucheta Kripalani sang the first few lines of Sare Jahan Se Achcha Hindustan Hamara and the first verse of Janaganamana Adhinayaka Jaya He.) Mr. President: The House will now adjourn for a few hours, till Ten of the Clock.

The Assembly then adjourned till Ten of the Clock on Friday, the 15th August 1947.

 

Fundamental Duties, National Song  and Supreme Court

Article 51A sets forth the fundamental duties

It shall be the duty of every citizen of India

1.     To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

2.     Another misleading attempt is that national song is not placed in the fundamental duties.Unfortunately Apex Court did not grant indulgence  on  ground to the effect that National Song is not part of Fundamental Duties without adverting to the historical facts and the Decision of the CAD dated 24 th Jan 1950 in Writ Petition(s)(Civil) No(s). 98/2017  ASHWINI KUMAR UPADHYAY Petitioner(s) VERSUS UNION OF INDIA AND ORS Respondent(s) order dated 17.2.2017

 

 

Be it clearly noted, Article 51A(a) of the Constitution of India does not refer to 'National Song'. It only refers to National Flag and National Anthem. The said Article reads as follows :

 

“51A. Fundamental duties It shall be the duty of

every citizen of India.--

(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem.”

 

Therefore, we do not intend to enter into any debate as far as the National Song is concerned.

 

 

But ,doctrine of ejusdem generis  is no more res integra in legal jurisprudence. It lends   support to the interpretation to the effect that  national song can not be separated from national anthem.

 

 

World View on the subject matter of standing to attention while playing or singing to national song also referred in  1987 AIR(SC) 748 Bijoe Emmanuel and others, Appellants versus State of Kerala and others, Respondents.

 

21. Donald v. Hamilton Board Education, (1945 Ontario Reports 518) (supra) was again a case of objection by Jehovahs witnesses to flag salutation and singing the national anthem. Gillanders, J. A., said:

 

"There is no doubt that the teachers and the school board, in the case now being considered, in good faith prescribed the ceremony of the flag salute only with the thought of inculcating respect for the flag and the  Empire or Commonwealth of Nations which events of recent years have given more abundant reason than ever before to love and respect. If I  were permitted to be guided by my personal views, I would find it difficult to understand how any well-disposed person could offer  objection to joining in such a salute on religious or other grounds. To  me, a command to join the flag salute or the singing of the national  anthem would be a command not to join in any enforced religious  exercise, but, viewed in proper perspective, to join in an act of respect for a contrary principle, that is, to pay respect to a nation and country which stands for religious freedom, and the principle that people may  worship as they please, or not at all."

 

Fundamental Duties , National Anthem and Supreme Court

 

28. We may presently travel to the past. This Court in Bijoe Emmanuel and Others vs. State of Kerala and Others2 (in paragraphs 9 and 10) has also emphasized on respect to the National Anthem. We may hasten to add that it sustained the right of the petitioner therein, but yet observed that a person who stands up respectfully when the National Anthem is sung, is showing proper respect. Thus, the stress is on respect when the National Anthem is sung or played.

 

 

National Song and Madras  High Court

 

W.P.No.32316 of 2013

and

M.P.No.1 of 2013

 

K.Veeramani .. Petitioner   Vs  The Chairman,

 

22.Considering the larger public interest and to instill a sense of patriotism in each and every citizen of the State, this Court in addition to direction already passed in the writ petition, issues the  following directions:

 

(a)The National Song “Vande Matharam” shall be played and sung in all schools/colleges/Universities and other educational institutions atleast once a week

(Preferably on Monday or Friday);

(b)The National Song “Vande Matharam” shall be played and sung in all Government Offices and Institutions/Private companies/ Factories and industries at least once a Month;

(c)The Director of Public Information is directed to upload and circulate the translated version of “Vande Matharam” in Tamil and English thereby making it available in the Government websites and also in social media;

(d)Let a copy of this order be marked to the Chief Secretary of the Government of Tamil Nadu, who shall  issue appropriate instructions to the concerned authorities;

(e)In the event, any person/organisation has difficulty in singing or playing the National Song, he or  she shall not be compelled or forced to sing it, provided

there are valid reasons for not doing so.

23.The youth of this country are the future of tomorrow. This Court hopes and trusts that this order shall be taken in the right spirit  and also implemented in letter and spirit by the citizenry of this great  Nation.