Union Home Minister Amit Shah has introduced the Prevention of Insults to National Honour (Amendment) Bill, 2026, in the Rajya Sabha. The Bill proposes to insert the words "or the National Song" into Section 3 of the Prevention of Insults to National Honour Act, 1971, making it punishable with imprisonment of up to three years to "intentionally prevent" the singing of the National Anthem or the National Song, or to "cause disturbance" to an assembly engaged in such singing.

The amendment introduces the penal consequences that the Supreme Court found absent earlier this year. On March 25 this year, while hearing Muhammed Sayeed Noori's challenge to the Ministry of Home Affairs' February 6 this year directive requiring the performance of all six stanzas of Vande Mataram at official events and school assemblies, the Supreme Court declined to intervene because the directive used the permissive word "may" rather than "shall" and imposed no penal consequences. The Court observed that the constitutional issue would arise only if the singing of Vande Mataram was made mandatory or its non-compliance attracted criminal liability.

The proposed amendment gives rise to that issue. Although the Bill extends the application of Section 3 to the National song, it continues to employ undefined expressions such as "intentionally prevents", "causes disturbance" and "assembly engaged in such singing". The amendment thus expands the scope of criminal liability without defining these essential elements of the offence, leaving its application uncertain.

An Offence Without Definition

Despite having remained in force for five decades, Section 3 of the Prevention of Insults to National Honour Act, 1971, contains no statutory definitions of expressions such as "intentionally prevents", "causes disturbance" or "assembly engaged in such singing". More than five decades after its enactment, the scope of these expressions continues to be determined primarily through judicial interpretation.

The scope of Section 3 was considered by the Supreme Court in Bijoe Emmanuel v. State of Kerala (1986), where three Jehovah's Witnesses schoolchildren respectfully stood during the National Anthem but declined to sing it on grounds of religious conscience. The Court held that their conduct neither prevented the singing of the National Anthem nor disturbed the assembly. As Justice O. Chinnappa Reddy observed, "there is no provision of law which obliges anyone to sing the National Anthem." The judgment makes clear that Section 3 is not attracted by the respectful non-participation alone.

The Kerala High Court adopted the same approach in Salman v. State of Kerala (2014), holding that Section 3 applied to deliberate acts that obstruct or disrupt the singing of the National Anthem, and not to mere presence or respectful silence. Together, these decisions recognise that Section 3 is directed at acts of obstruction or disruption rather than non-participation.

The proposed amendment does not incorporate these judicially developed limitations. Although it extends the application of Section 3 to the National Song, it retains the existing statutory language and relies on Dr Rajendra Prasad's declaration of January 24, 1950, as the basis for extending statutory protection to Vande Mataram. The declaration explains the historical basis for according equal statutory recognition to the National Song; it does not, however, address how a provision whose scope has been shaped through judicial interpretation is to operate when applied to a different national symbol.

The omission assumes constitutional significance because the essential ingredients of the offence continue to lack statutory definition. The principle of legality (nullum crimen, nulla poena sine lege) requires criminal offences and penalties to be defined with sufficient precision so that individuals can reasonably foresee the legal consequences of their conduct. The same requirement finds expression under Articles 14 and 19(1)(a) of the Constitution; vague penal restrictions are also vulnerable to arbitrary enforcement and may have a chilling effect on protected expression. In Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the Information Technology Act in part because vague expressions failed to provide adequate standards and notice.

Article 15(1) of the International Covenant on Civil and Political Rights (ICCPR), prohibits the retrospective creation of criminal offences and the imposition of heavier penalties than those prescribed by law. The United Nations Human Rights Committee has likewise recognised that Article 15 embodies the principles of legality and legal certainty, requiring criminal laws to be formulated with sufficient clarity to allow individuals to regulate their conduct accordingly.

While Parliament may extend statutory protection to the National Song. It cannot, however, expand the scope of a penal provision without defining the essential elements of the offence. Expressions such as "intentionally prevents", "causes disturbance" and "assembly engaged in such singing" remain undefined, leaving the content of the offence to judicial interpretation.

The amendment does not define the conduct that attracts criminal liability under Section 3. It leaves unresolved the meaning of expressions such as "intentionally preventing" the singing of the National Song, when disagreement becomes "disturbance", and whether respectful silence remains outside the offence. These are matters that require legislative definition rather than judicial determination in the course of criminal proceedings.

Freedom of Conscience and Criminal Liability

The absence of statutory clarity assumes greater significance when the proposed amendment is read alongside the Ministry of Home Affairs' directive dated February 6, 2026 requiring all six stanzas of Vande Mataram to be sung at government functions, official events and school assemblies. While the Supreme Court declined to examine that directive because it imposed no penal consequences, the proposed amendment now seeks to introduce those consequences without clarifying the conduct that attracts criminal liability.

This is particularly important because Vande Mataram has never occupied the same historical position as the National Anthem. Although both enjoy equal constitutional honour, the later stanzas invoke the Hindu goddesses Durga, wielder of ten weapons; Lakshmi, the goddess of prosperity; and Saraswati, the goddess of learning, giving rise to long-standing questions of religious conscience. Those concerns were recognised even before Independence. In 1937, the Congress Working Committee, guided by Mahatma Gandhi and Rabindranath Tagore, resolved that only the first two stanzas should be sung at national occasions. When Dr Rajendra Prasad declared on January 24, 1950, that Vande Mataram would enjoy equal honour with Jana Gana Mana, he preserved that compromise without defining the scope of the National Song.

Against that background, the amendment raises concerns under Article 25. A person who respectfully abstains from singing the later stanzas for reasons of conscience may neither intend disrespect nor cause disruption. Bijoe Emmanuel recognised that such non-participation, without any act of obstruction, falls outside the scope of Section 3. The Bill, however, does not incorporate this safeguard. It extends the scope of criminal liability without defining the essential elements of the offence

The Need for Legislative Clarity

The proposed amendment extends statutory protection to Vande Mataram. The constitutional issue does not arise from that legislative choice. It arises because Section 3 continues to define neither the conduct that constitutes the offence nor the circumstances in which the criminal liability arises.

The principle of legality requires criminal offences to be defined with sufficient precision. Where the essential elements of an offence remain undefined, their content is left to judicial interpretation. This creates uncertainty in the application of the law and increases the possibility of inconsistent enforcement and constitutional challenge. A more clearly drafted provision would reduce disputes over the scope of criminal liability and enable courts to determine whether the statutory ingredients of the offence have been established.

If Parliament intends to extend Section 3 to the National Song, it must define the offence with greater clarity. The provision should make clear that criminal liability arises only from deliberate acts of obstruction and demonstrable disruption. It should also expressly protect respectful silence, conscientious abstention and religious objection where such conduct is not accompanied by coercion, disruption or any deliberate attempt to prevent others from observing the National Song.

National symbols deserve legal protection. That protection, however, must be secured through legislation that defines the scope of criminal liability with sufficient clarity to guide citizens, public authorities and courts. By defining with greater precision the conduct that attracts criminal liability, Parliament can extend statutory protection to Vande Mataram while ensuring greater certainty in the application of Section 3.

Views are personal.