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CASE NO.: Writ Petition (civil)  16 of 2005

PETITIONER: Sanjeev Bhatnagar

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 13/05/2005

BENCH: CJI R.C. Lahoti & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T  

R.C. LAHOTI,  CJI   

       On 24th January 1950, the Constituent Assembly of India finally  met to sign the Constitution.   The question of having a National  Anthem for India as a free country and a nation was under  consideration.  The Constituent Assembly had appointed a Committee  to make recommendations about the final selection of a National  Anthem.

       After deliberations it was considered desirable to leave it with  the President to make a declaration in the Assembly on the question of  adopting a National Anthem for India.  In the Constitution Hall, on 24th  January 1950, where the Constituent Assembly of India finally met to  sign the Constitution, President Dr. Rajendra Prasad declared his  decision on the matter relating to National Anthem in his opening  statement in the following words:-

       "There is one matter which has been pending  for discussion, namely the question of the National  Anthem.  At one time it was thought that the  matter might be brought up before the House and  a decision taken by the House by way of a  resolution.  But it has been felt that, instead of  taking a formal decision by means of a resolution,  it was better if I make a statement with regard to  the National Anthem.  Accordingly I make this  statement.  

       The composition consisting of the words and  music known as Jana Gana Mana is the National  Anthem of India, subject to such alterations in the  words 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 honoured equally with  Jana Gana Mana and shall have equal status with  it. I hope this will satisfy the Members."

___Constituent Assembly Debates, XII.  (24th January, 1950)

       After the Constitution had been signed by all the members of  the Assembly, the President, on the request of Shri M.

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Ananthasayanam Ayyangar permitted all members of the House to  sing Jana Gana Mana in chorus.  Then led by Shrimati Purnima Banerji  all of them sang it in chorus for the first time after its formal adoption  as our National Anthem.

       The following is the transliteration i.e. the text of the National  Anthem in Hindi:

"Jana-gana-mana-adhinayaka, jaya he  Bharata-bhagya-vidhata. Punjab-Sindh-Gujarat-Maratha Dravida-Utkala-Banga Vindhya-Himachala-Yamuna-Ganga  Uchchala-Jaladhi-taranga. Tava shubha name jage,   Tava shubha asisa mange, Gahe tava jaya gatha, Jana-gana-mangala-dayaka jaya he  Bharata-bhagya-vidhata. Jaya he, jaya he, jaya he Jaya jaya jaya, jaya he!" (Source __ India 2004, A Reference Annual, published  by Publications Division, Ministry of Information  and Broadcasting, Government of India, p.22)          The great poet Rabindranath Tagore had himself rendered the  English translation of his poem which reads as under:- "Thou art the ruler of the minds of all people, dispenser of India’s destiny.

Thy name rouses the hearts of Punjab, Sind,  Gujarat and Maratha,

Of the Dravida and Orissa and Bengal; It echoes in the hills of the Vindhyas and Himalayas, mingles in the music of Jamuna and Ganges and is  chanted by the waves of the Indian Sea.

They pray for thy blessings and sing thy praise. The saving of all people waits in thy hand,  thou dispenser of India’s destiny.

Victory, victory, victory to thee." (Source, India 2004, ibid, p.22)

       The song was first sung on December 27, 1911 at the Calcutta  session of the Indian National Congress.  Ever since the date of its  being adopted by the Constituent Assembly of India, the National  Anthem has been sung throughout the length and breadth of India, by  every patriot, every citizen and all people of this country.  It has been  sung even in places beyond India.

       The Prevention of Insults to National Honour Act, 1971 (Act No.  69 of 1971) enacted by the Parliament makes it an offence for  whoever intentionally prevents the singing of the Indian National  Anthem or causes disturbance to any assembly engaged in such  singing.  Article 51A of the Constitution of India, inserted by Forty- second Amendment, provides for it being the fundamental duty,  amongst others, of every citizen of India to abide by the Constitution  and respect its ideals and institutions, the National Flag and the  National Anthem.  The Constitution of India, its ideals and institutions,  the National Flag and the National Anthem have been treated almost  on par.  From the language of Clause (a) of Article 51A, it is clear that

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the National Anthem is an ideal and an institution for the Indian  citizens.  In Re: Kerala Education Bill, 1959 (1959 SCR 995), S.R.  Das, Chief Justice, quoted a stanza from the National Anthem as India  sending out its message of goodwill to the world and thus the genius  of India finding unity in diversity by assimilating the best of all creeds  and cultures.   

The petitioner is an advocate.  He has filed this petition,  claiming to be in public interest, invoking the extraordinary jurisdiction  of this Court under Article 32 of the Constitution of India seeking a  direction to the Union of India to rectify the text of National Anthem  and delete the word ’Sindh’ therefrom.  Earlier too, he had filed a  similar petition, registered as W.P.(C) No.506/2004.  When the matter  came up for hearing on 20.9.2004, the Court was not inclined to  entertain the petition.  However, the petitioner insisted that the  Government of India had the authority to alter the text of National  Anthem and therefore, a direction by the Court in that regard was  called for.  The petition was dismissed though the petitioner was  allowed liberty of inviting the attention of the Central Government to  the facts stated in the writ petition and such other material as may be  with the petitioner.  The petitioner did make a representation on  24.9.2004. On 3.12.2004, he once again filed this writ petition seeking  the very same and the only relief as was sought for earlier.  The Court  directed a notice to be issued to the respondent-Union of India for  having its response.

       While the Union of India has filed its response opposing the  prayer made by the petitioner, there are a number of applicants  seeking intervention in the hearing so as to oppose the writ petition.   Some of the intervenors are \026 All India Sindhu Culture Society headed  by a former Judge of the High Court, Rashtriya Sindhu Parishad  headed by an Advocate, Sindhi Council of India \026 A Registered Society,  International Sindhi Forum, Sindhi Jagriti Sabha, Delhi Pradesh Sindhi  Samaj and a few other similar institutions and representative bodies.   A few individuals belonging to Sindhi or non-Sindhi community have  also sought for intervention.  In substance, all the intervenors have  offered their vehement opposition to the petition submitting that their  feelings, first as an Indian and then as members of Sindhi community  who love Sindhi as a language and also as a culture, have been hurt  by the move of the petitioner.  They have sought for the petition being  dismissed.

       The stand taken by the Union of India is that the National  Anthem is a highly emotive issue; any alteration/substitution in the  National Anthem will distort the National Anthem and may give rise to  several unnecessary controversies, while no fruitful object will be  served.  The National Anthem is not open to mutilation.  The song is a  literary creation which cannot be changed.  The National Anthem  reflects our culture spread throughout the length and breadth of India  whether it is North, South, East or West.

Having heard the petitioner appearing in-person, the learned  Attorney General for the Union of India and the several counsel for  intervenors led by Mr. Ram Jethmalani, Senior Advocate, and a few  intervenors appearing in-person, we are satisfied that the petition is  wholly devoid of any merit and is liable to be dismissed.  The main  plank of the petitioner’s case is that the geographical region known as  ’Sindh’, was a part of India pre-partition (i.e. before 15th August,  1947) and ever since then it is not a part of India, and therefore, the  use of the word ’Sindh’ in the National Anthem is misplaced and  deserves to be deleted for which an appropriate direction needs to be  issued to the Union of India.  In our opinion, the submission is  misconceived for very many reasons which we proceed to summarize

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herein below.  

A National Anthem is a hymn or song expressing patriotic  sentiments or feelings.  It is not a chronicle which defines the territory  of the nation which has adopted the anthem.  A few things such as __ a  National Flag, a National Song, a National Emblem and so on, are  symbolic of our national honour and heritage.  The National Anthem  did not, and does not, enlist the states or regional areas which were  part of India at the point of time when it was written.  Nor is it  necessary that the structure of the National Anthem should go on  changing as and when the territories or the internal distribution of  geographical regions and provinces undergoes changes.  Very recently  Uttaranchal, Chhattisgarh and Jharkhand have been carved out by  reorganizing certain states.  Does it mean that the National Anthem  should be enlarged, re-written or modified to include the names of  these new states?  The obvious answer is \026 no.  The National Anthem  is our patriotic salutation to our motherland, nestling between the  Himalyas and the oceans and the seas surrounding her.  The mention  of a few names therein is symbolic of our recollection of the glorious  heritage of India.  ’Sindh’ is not just a geographical region.  It refers to  the place and to its people.  Sindhis are spread throughout the country  and they derive their such name as having originated and migrated  from Sindh.  ’Sindh’ also refers to the river ’Sindhu’ or ’Indus’.  It also  refers to a culture, one of the oldest in the world and even modern  India feels proud of its having inherited the Indus Valley Civilisation as  an inalienable part of its heritage.  River Indus (Sindhu) finds  numerous references in the Indian Classical Literature including Rig  Veda.

The National Anthem is the poem as it was written by  Rabindranath Tagore.  He himself had said that the five stanzas in  which the poem was written is addressed to God.  The poem is a  reflection of the real India as a country ___ a confluence of many  religions, races, communities and geographical entities. It is a  message of unity in diversity.  It is a patriotic song.  It has since the  decades inspired many by arousing their patriotic sentiments when  sung in rhythm.  It is the representative of the ethos of the country.   Any classic, once created, becomes immortal and inalienable; even its  creator may not feel like making any change in it.   Any tampering  with the script of the poem would be showing disrespect to the great  poet ___  Rabindranath Tagore.

The hue and cry raised by the petitioner in his petition and also  during the hearing at the Bar does not amount to raising any  constitutional issue or canvassing any fundamental right for the  enforcement of which the jurisdiction of this Court under Article 32 of  the Constitution can be invoked.  The issue is puerile.  Shri Milon  Banerjee, the learned Attorney General for India, submitted that the  Union of India, a democratically elected popular Government is not in  favour of making any alteration in or any tampering with a finely  structured poem or song, which is the National Anthem.  Every word  placed therein is carefully in position in the whole composition.  A  suggestion seeking a substitution of words in the National Anthem  would be "a bid to rob Tagore of his greatness".  He further submitted  that in any poetry the structure has some purpose other than to clarify  the content.  Poetry is more structured than prose.  It is the structure  which forces the author to be more creative; to find ways of saying  things which do not disrupt the flow.  The choice of words and the  structure often provide a path for the reader to follow outside the flow  of the theme and a good poet achieves interesting things by playing  the flow through the content and off the content.  The fabric of words  is the creation of the author.  A poem once popular, more so if

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adopted as a National Anthem, becomes symbolic of the feelings, ideas  and images that have come to be associated in our minds with the  words used by the author in structuring the poem and then the  meaning of a word or a group of words reaches far beyond its  dictionary definition.  The learned Attorney General invited our  attention to the book "India’s National Anthem" by Prabodhchandra  Sen, published by Vishva Bharti, Calcutta in May 1979, wherein  Mahatma Gandhi, the Father of the Nation, has been quoted as having  said in a prayer discourse on 8th May, 1946 on the occasion of  Rabindranath Tagore’s Birth Anniversary about Jana Gana Mana ___ "It  is not only a song but is also like a devotional hymn".  The National  Anthem has been given a tune.  Its singing or playing takes 52  seconds.

The learned Attorney General read out the following passage  from "India’s National Anthem" (ibid) which we feel inclined to quote  verbatim for its value:

          "THE MORNING SONG OF INDIA"         In the year 1919, during his tour of South  India, Rabindranath spent five days at the  Theosophical College, Madanapalle, at the  invitation of Principal James H. Cousins.  There he  sang the song ’Janaganamana’ at some function.   The audience was very much moved by the tune  and at their request he made an English translation  of the song and called it ’The Morning Song of  India’.  The college authorities, greatly impressed  by the tune and the lofty ideals of the song,  selected it as their prayer song to be sung every  morning before the day’s work commenced.  In a  letter (23.7.34) Principal Cousins writes:

       Every working morning Janaganamana is  sung by hundreds of young people in our big  hall.  We want to extend its purifying  influence by sending copies of it to other  schools and colleges in India and by making  it known abroad.

       Later, in the year 1936, the translation  mentioned above was printed in the Poet’s own  handwriting in the College Commemoration Volume  and distributed widely, with a note that this ’would  become one of the world’s most precious  documents\005  From Madanapalle Janagana has  spread all over India, and is admired in Europe and  America.’

       In the next year (1937), when a bitter  controversy was raging throughout the whole  country over the selection of India’s National  Anthem, Principal Cousins issued a statement to  the Press (3.11.37) in which he stated:

My suggestion is that Dr. Rabindranath’s  own intensely patriotic, ideally stimulating,  and at the same time world-embracing  Morning Song of India (Janaganamana)  should be confirmed officially, as what it has  for almost twenty years been unofficially,  namely, the true National Anthem of India."

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Mr. Ram Jethmalani, the learned senior counsel leading the  intervenors, severely criticized the conduct of the petitioner who has  mentioned in the writ petition that the continued use of the word  ’Sindh’ in the National Anthem offends patriotic sentiments of the  citizens of India and is offensive of sovereignty of the neighbouring  country.  He goes on to allege that the sentiments of 100 crore Indians  can be soothened by correcting and updating the "National Anthem".   The learned senior counsel posed the questions __ Whose cause the  petitioner is pleading ___ of the citizens of India or of a neighbouring  country?  Wherefrom does the petitioner gather an impression and  plead that he is espousing the cause of more than one billion people of  India?  The learned senior counsel was at pains to point out that ever  since this petition was filed in the Court and notice was directed to be  issued the Indian newspapers have been flooded with editorials and  hundreds of ’letters to the editor’ highlighting the sentiments of the  people of India, and in particular of Sindhis who have felt hurt by the  move of the petitioner.  There are several oppositions filed in the  Court.  There is not even one who may have spoken in support of the  petitioner.    We find merit in the submissions made by the learned Attorney  General for India and Mr. Ram Jethmalani, the learned senior counsel  appearing for the intervenors, and agree with the same.

We are satisfied that the petitioner is not entitled to the relief  prayed for.  The petition is wholly devoid of any merit.  The petition is  not in public interest.  It is a petition which should never have been  filed.  It is more of the publicity interest litigation wherein the  petitioner seems to have achieved his purpose.  To discourage the  filing of such like petitions which result only in wasting the valuable  time of this Court, we direct the petition to be dismissed with costs  quantified at Rs.10,000/-.