Senior Advocate S Muralidhar, appearing for Krishna, contended that the law does not define what ‘national anthem’ is and this makes it open for misuse.
“The Act does not define what a national song is. It is a serious lacuna in the law, and it can be misused. Office memorandum, which is not even gazetted. I don’t understand under what provision. They don’t cite any provision. They simply issue an office memorandum,” he said.
A penal statute cannot be vague, he underscored.
“It is a penal statute. And a penal statute can’t be in the realm of vagueness. You don’t even define what a national song is in the statute, and you make it a punishable offence,” Muralidhar said.
“Even the Constitution didn’t mention the national song in Article 51A. By customs and usage, the national song has always been mentioned and understood as Vande Mataram, with the two stanzas,” Justice Bagchi replied.
“So for the first time, after almost 80 years, they are trying to tell us it’s not two stanzas. This is why, when you use the adjective “national”, there has to be some building of a public opinion. It has to be by some consensus. You can’t thrust it, and you can’t have penal consequences. That is what is most worrying,” Muralidhar said.
He said that government cannot rely on an office memorandum to impose consequences of a penal statute.
“No, no. So let’s do this. As long as the government is able to clarify that they will not rely on this kind of some office memorandum to give meaning to a statute, and the consequences of imprisonment, punishment and all of that, by relying on some office memorandum, let them clarify it. Because they were in such a great hurry to introduce this amendment without thinking it through. And this is most unfortunate. See, the original law, there was no mention of a national song. National song requires an official declaration in the form of a notification,” he said.
Solicitor General Tushar Mehta, appearing for the Central government, asked the Court not to issue formal notice to the government and sensationalise the matter.
“Let me be given a copy. Notice will create a sensation, which appears to be the object,” he said.
Mehta also said that the petitioner cannot act as a moral guardian.
“Ideally, these things should evolve as a building up of public opinion. Ideally. This is an area of democratic association in nationalism. Which is why I am on the larger issue of the lawmaking process itself,” Muralidhar submitted.
Mehta said that the petitioner was trying to play to the gallery and law made by parliament reflects the Constitutional way.
“Parliament, I said that is the constitutional way, not what the Naxalite wants,” Mehta said.
This led to strong objections by Muralidhar.
“Why is a law officer using these kinds of expressions? It doesn’t behove a law officer. I have never heard a law officer use these kinds of expressions,” Muralidhar shot back.
The SG, however, refused to withdraw his ‘naxalite’ remark.
Krishna has sought directions to strike down the amended Section 3 and declare that only the first two of the six stanzas of Vande Mataram constitute the National Song.
Additionally, he has sought interim protection from the operation of the challenged provisions pending a final decision on his plea.