At this, Justice Bagchi 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."
He also said that there cannot be penal consequences for not singing the national song.
He further said that government cannot rely on an office memorandum to impose consequences of a penal statute.
National song requires an official declaration in the form of a notification," he said.
Senior Advocate S Muralidhar, appearing for Krishna, contended that since the law does not define what the 'national song' is, there could be a misuse of the penal provisions.
"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 added.
At this, Justice Bagchi 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."
Muralidhar submitted that for almost 80 years, people were told to only sing two stanzas of the song and that any change should come only by consensus.
He also said that there cannot be penal consequences for not singing the national song.
"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," he added.
He further 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.
