The Author, Medha Priya, is a fourth year BA LLB student at Amity Law School, Noida. She is currently interning with LatestLaws.com.

While for some it’s not more than just a cloth and ink, but for others the Indian National flag embodies emotions and vehemence of billion Indians carried forward since unveiling in 1921.

An allegory in itself, it’s might has indeed withstood the test of time challenged by several interpretations. The clenching history, the enwreathing controversies and the ethical overtone, the Flag has braved them all. The evolution of Indian National Flag has sailed through the crests and troughs to arrive at the juncture. Pseudo-patriotism has unveiled its tyranny with the pseudo-nationalists waving off the rights with the flag.

This article, stipulates and studies the laws that guard the integrity and sanctity of the Indian National Flag, its usage and the related cases that brewed controversial debates redundantly.

Legal Anatomy

Constitutional Perspective

The Indian constitution through Article 51-A imposes a non-binding duty upon the Indian citizens to inter alia abide by the Constitution and respect the National Flag. The implied provision of Article 19(1)(a), which guarantees to all citizens the right to freedom of speech and expression entails the right includes the right to fly the National Flag, as it is an expression and manifestation of one’s allegiance and sentiments of the pride for the nation. Rights under Article 19(1)(a), however, are not absolute and are subject to restriction by law under Article 19(2).

The usage and SOPs for hoisting and unfurling of the national flag is regulated by the Flag Code of India, 2002; the Prevention of Insults to National Honour Act, 1971 and the Emblems and Names (prevention of Improper Use) Act, 1950.

Penal policy

Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections talk about the prohibition of the sale or distribution or exhibition of obscene words, etc. in public places.

The Flag Code of India, 2002: A non-statutory code

The latent Flag Code of India was replaced with a new code on 26^th January 2002. The old one held more conservative ideology and obstructed the use of the national flag by private citizens. The Flag Code, 2002, permits unrestricted display of the national flag, while verifying its congruity with the moral fabric of the flag.

In order to synchronize, the Flag Code of India, 2002, laid the demarcation of the code in three parts.

Part I of the Code includes general description of the National Flag.

Part II of the Code entails display and exposition of the National Flag by organizations both public and private, educational institutions, etc.

Part III of the Code prescribes display of the National Flag by Central and State governments and their organizations and agencies.

The Flag Code is a compendium of executive directives and is not recognized under statutory rules or legislation. Nevertheless, the Flag Code provides for preserving respect and dignity of the national flag, and ought to be followed as per the Judicial decisions.

The new Flag Code resonates the progressive attitude of the Court towards the national flag. It has promoted the importance of the freedom of expression and the extent to which it may be allowed by permitting its free use by citizens relying upon the safe presumption that citizens are well aware of their duties and obligations, to give the flag the reverence it deserves.

With the introduction of the new Flag Code, there has been an incredible increase in the sales of the national flags.

The Prevention of Insults to National Honour Act, 1971 (now, the Prevention of Insults to National Honour (Amendment) Act, 2003)

This Act specifies as to what pertains to the word 'disrespect' for the national flag. It also takes an initiative to ensure its respectful use as well.

Section 2 of the Act makes derogation and insulting of the National Flag a punishable offence, prescribing a sentence of three years, or fine, or both. The Section reads, ‘Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or [otherwise shows disrespect to or brings] into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.’

The definition entails two significant words ‘Indian National Flag’ and ‘disrespect to the Indian National Flag’.

The Indian National Flag, in this context, means any ‘virtual representation of the flag made of any substance, which inter alia includes any picture, painting, drawing, photograph etc,’ as mentioned under Explanation 2 of Section 2.

Explanation 4 describes ‘disrespect to the Indian National Flag’ as a ‘gross desecration in the form of affront or indignity’ offered to the Flag. The same elucidates examples which amount to disrespecting the flag. These are:

Lowering of the National Flag in salute to a person or thing (sub-section (b)).
Flying of the National Flag at half-mast leaving the days where it is flown at half-mast on public buildings (sub-section (c)).
National Flag usage as for draping someone/something excluding the state funerals or armed forces or other para-military funerals (sub-sections (d) and (j)).
National Flag usage as part of a costume or accessory worn below the waist of a person (sub-section (e)(i)).

The States Emblem of India (Prohibition of Improper Use) Act, 2005

The Act was passed for keeping check on the usage of the national emblem and also for penalizing those who try to take undue advantage for personal gain through an advertisement or other means. The Indian National Flag, comes under the insignias that are governed by the Emblems & Names (Prevention of Improper Use) Act, 1950

Case laws

The judiciary, though via its judgments, has laid down a very high threshold for prosecuting someone for disrespecting the National Flag, the proportion of such cases has shown an upsurge.

The concerned court aids itself with the following to reach conclusion.

1. The historical significance of the National Flag of India and the Constituent Assembly Debates;

2. Constitution of India, 1950;

3. Provisions of the Flag Code of India, 2002; and

4. Essential Ingredients to attract an offense under Section 2 of the Act; and

4.1. Importance of Mens Rea in a case of this nature;

4.2. Interpretation of Insult; and

4.3. Interpretations rendered by various High Courts on the purport of Section 2 of the Act.

5. Presence of Compulsive Patriotism.

Union of India v. Naveen Jindal (2004)

This is the landmark case remodeling the flag usage in India. Naveen Jindal, an industrialist, filed a petition before the Delhi High Court after he was stopped from flying the national flag in accordance with the Flag Code of India. The Court held that the right to fly the flag can be considered as an expression of an individual’s allegiance and pride for their nation. However, the Court chalked out the nuances when this right can be subject to certain reasonable statutory restrictions.

The High Court observed that, according to Article 19(2), the only valid limitations on this right were those that were mentioned in the statute. In cases concerning the regulation of the hoisting of the national flag, such limitations could be traced in the Emblems and Names (Prevention of Improper Use) Act, 1950 or the Prevention of Insults to National Honour Act, 1971.

The Union of India filed an appeal against this decision to the Supreme Court on the basis that whether citizens were free to fly the national flag was a policy decision, and thereby could not be subject to court interference.

The Supreme Court took into account three important points in order to find the conclusion to the question of whether the Flag Code is a Law under Art. 13(3)(a) namely:

1. Gravity of influence of National Flag,

2. Constituent Assembly Debates and

3. Rules existing in other countries.

The top court ultimately agreed with the High Court and thus, held that the right of a private citizen to display the national flag was a fundamental right falling within the purview of Article 19(1)(a). At the same time, this right was not absolute and was subject to the reasonable restrictions contained in Article 19(2).

The Court also held that a fundamental right stands in congruity with the fundamental duty and if, the former is granted, the latter cannot be discarded. The Court, relying on a plethora of decisions, held that the Flag Code was a mere body of executive instructions

In Inspector of Police v. D Senthilkumar (Cr. O.P. No. 15656 of 2020) the facts of the case were that in 2013, on Christmas eve, a cake displaying the National Flag as the icing, was cut, distributed, and consumed by the guests. The complainant contended that the picture of the National Flag on the cake, and the subsequent cutting of the cake, breaches Section 2 of the the Prevention of Insults to National Honour Act, 1971 Act. The Magistrate directed the police to register an FIR following the complaint. This was challenged before the High Court by the police. The High Court not satisfied with the hereby observed-

“Patriotism is not determined by a gross physical act. The intention behind the act will be the true test, and it is possible that sometimes the very act itself manifests the intention behind it. In the present case, even if the entire set of facts stated in the complaint are taken as it is, it must be seen as to what would have been the actual feeling with which the participants would have dispersed after the function was over.”

Sarvadnya D. Patil and Anr. v. State of Goa and Ors. (2001)

The Bombay High Court in this case held that there should be an intentional overt act in order to be quoted under the offence under Section 2 of the Act. The nuances of the judgement are depicted hereunder:

The court held it doubtful as to whether omission to hoist the National Flag or hold the Flag Hoisting ceremony on the aforesaid days of national importance would fall within the ambit of “or otherwise brings into contempt”. “The definition distinctly points towards acts such as burning, mutilating, defacing, defiling, etc. In order to be liable for punishment under Section 2, it is crucial that the act complained of must be intentional. The omission to hold the flag hoisting ceremony cannot be said to be sui generis with the positive acts mentioned preceding the words or otherwise. Even otherwise, there is no statutory provision making it mandatory to hold the flag hoisting ceremony on days of national importance.”

The Publisher, Sportstar Magazine, Chennai v. Girish Sharma (2000)

The case pertains to the Indian Flag which was placed upside down in a tournament in which Chess was played by V. Anand and Veselin Topalov and a picture of the same was published by the petitioner herein. The photograph and the opinion given in the article by the writer was intended to impress upon the players as well as the Organisers of the Tournament that at least in the future, the Flags of the respective countries must be placed in a correct way which would pave the way for the proper play. Therefore, this is only a comment by the press which indicates the importance of the honour to be given to the National Flag.

The court hereby maintained that this publication of the photograph and the events which took place in the foreign country while the chess was played along with the opinion of the writer of the article, would not attract any ingredients of Section 2 of the Prevention of Insults to National Honour Act, 1971.

Ajitinder Singh v. State of Punjab (2000)

In this case, it was held that Flying the National Flag on the Government vehicles does not stand contrary to any aforesaid statute or code, nor does it amount to insult to Indian National Flag. The petitioner is not able to extract any of the provisions of law or authority to show that flying the National Flag on the car used by Respondent amounts to insult to the National Flag. A plain reading of Section 2 of the Prevention of Insults to National Honour Act, 1971 does not prohibit flying of the National Flag on the bonnet of the car. Therefore, this contention of petitioner is also rejected.

In a resembling case, Kantilal Bhuria v. Sanjay Sarvaria (2011), the Madhya Pradesh High Court quashed a complaint against a sitting Cabinet Minister who was accused of sitting in a car having a mutilated National Flag.

Ganesh Lal Bathru v. State of MP (2002)

In this case, the Complainant, a Sarpanch lodged an FIR against accused the Principal of a Government High School. Both were supposed to be on inimical terms over hoisting of the national flag on 26^th January 1999. The issue got temporarily resolved when it was decided that the complainant would hoist the flag on the Republic Day in the premises of the school. However, the matter enraged when it was proclaimed that the flag was not tied in prescribed order inadvertently and the saffron colour was upended by a lower staff of the school. The flag was however corrected when the matter was brought into notice.

The court stated in favour of the accused and hereby interpreted the clause- “otherwise being into contempt”. It stated that the clause cannot be stretched that far as to include acts in question which are absolutely devoid of elements of mens rea or disrespect and thus fall outside the definition of contempt as given in Black’s Dictionary and that there is scarce material to show mens rea to undermine the sovereignty of the nation.

Mandira Bedi v. Pawan (2008)

Celebrities are always under close scrutiny. The way they carry themselves invite many eyes. The situation was not very indifferent to anchor and actress Mandira Bedi during the 2007 Men’s Cricket World Cup telecast where she wore a saree bearing images of the National Flags of participating countries. She was booked under Section 2 of the Prevention of Insults to National Honour Act, since the image of the Indian National Flag was below her waist and adjacent to her legs.

British musician Chris Martin in very similar fashion had drawn controversy during a concert in India, when he tucked the Indian National Flag in his jeans.

In the infamous case of National Legal Services v. Union of India the Apex Court brought one’s choice of dress under the ambit of Article 19 of the Indian Constitution. Therefore, use of National Flag on the dress above the waist is legal in India.

P.V. Joseph v. State of Kerala (2016)

In this case, the Kerala High Court held that a prosecution would be futile in a case where there was no intention on the mind of the accused person to dishonour the National Flag and quashed charges against the accused for failing to dip the National Flag after the prescribed time, since there was no intention to disrespect the Flag.

Amgonda Vithoba Bandhare v. Union of India (2012)

In this case, it was held that the offense of not lowering down the Flag after sunset does not come under the instances mentioned in Explanation 4 or in Section 2 of the Prevention of Insults to National Honour Act. The contention in the complaint, therefore, even if they are accepted at its outset does not constitute an offense within the meaning of Section 2 of the said Act.

Dr. Varsha w/o Raj Salunke v. State of Maharashtra (2019)

In this case it was held that the offence of not dipping the Flag after sunset does not fall under any of the various instances which are mentioned in Explanation 4 or in Section 2 of the Prevention of Insults to National Honour Act. The contentions advocated in the complaint, therefore, even if they are accepted ostensibly, does not necessarily constitute an offense within the meaning of Section 2 of the said Act.’

As for the Flag Code, it was derived that the same is neither an Act nor is it issued under any of the statutory provisions of the said Act and, therefore, it is not a statutory law enacted by the competent legislature.

Therefore, when the facts of the case declined to disclose commission of any offence and there is only non-observance of the Flag Code, then such non-observance which is not a law within the meaning of Article 13(3)(a) of the Constitution of India, cannot be said to be covered under Section 2 of the Prevention of Insults to National Honour Act, 1971.

Conclusion

One can never doubt the conviction with which James Bryce customized his stance in the following thought-provoking quote, “Patriotism consists not in waving the flag, but in striving that our country shall be righteous as well as strong."

The aspersions disguising itself behind the inspiration have strayed the actual meaning of patriotism; that in real sense stands for constructive patriotism. The laws and the precedents have tried to frame a very positive picture which unfortunately have been misaligned.

The common conscience drives one to believe that rather than indulging in symbolic patriotism, this money could be diverted towards the causes and issues that could materially benefit citizens. A nationalist does not need giant flags or other symbols everywhere to remind or instill in them feelings of patriotism. This money, if invested in providing benefits on citizens, it would actually make them prouder of their nation and its government. The same has been portrayed in the Naveen Jindal case.

Likewise, the State and its citizens should not get involved in such crude patriotism just for the sake filing complaints without understanding the actual law. By superfluously harassing a citizen with no fault, we disrespect the very nation for whose honour we try to protect with such complaints. It is therefore, to be contemplated whether cutting of cake bearing the national flag or lynching to guard the honour of flag should drive retribution

Picture Source :

Medha Priya