The Kerala High Court recently quashed criminal proceedings initiated against a Municipal Secretary for failing to lower the National Flag after Independence Day celebrations, holding that the alleged inaction, without any deliberate or intentional insult, does not attract penal consequences under the Prevention of Insults to National Honour Act, 1971. The Court observed that, “Unless there is a deliberate action with an intention to insult the national honour or show disrespect to the National Flag, the provisions of the Act of 1971 cannot be attracted.”
The case arose when the petitioner, who was serving as the Secretary of Angamaly Municipality, was present during the hoisting of the National Flag on Independence Day in the municipal compound. However, the flag remained hoisted until the noon of August 17. A suo motu FIR was lodged by the police, and a charge sheet was filed alleging violation of Section 2(a) of the Prevention of Insults to National Honour Act, 1971, read with Rule 3.6 of the Flag Code of India, 2002. The petitioner approached the High Court seeking quashing of the criminal proceedings.
The counsel for the petitioner contended that even if the prosecution’s allegations were accepted at face value, no offence was made out against the petitioner. It was argued that the continuation of proceedings based on such allegations amounted to an abuse of the process of law, as the Flag Code is not a statutory law and mere inaction cannot amount to an offence under the 1971 Act.
The Court analyzed Section 2 of the 1971 Act, which criminalizes acts such as burning, mutilating, or otherwise showing disrespect to the National Flag. It emphasized that the explanation under the Act enumerates specific instances constituting disrespect, and the act of failing to lower the flag after sunset is not among them.
The Court remarked, “Mere lapse or inaction on the part of a person in not lowering the flown National Flag after sunset cannot be said to be an act of gross affront or indignity, or insult to the National Flag. Unless there is a deliberate action with an intention to insult the national honour or show disrespect to the National Flag, the provisions of the Act of 1971 cannot be attracted.” The Court also noted that there was no material to show mens rea or any willful intention on the part of the petitioner to insult or undermine national honour. It further observed that the Flag Code, 2002, consists of executive instructions and is not a law within the meaning of Article 13(3)(a) of the Constitution. Hence, penal consequences could not be imposed for its violation without a corresponding statutory provision.
Concluding that no offence was made out against the petitioner, the Court held that allowing the criminal prosecution to proceed would serve no useful purpose. Accordingly, it quashed the final report and all further proceedings pending before the trial court. The Criminal Miscellaneous Case was allowed.
Case Title: Vinu C Kunjappan vs. State of Kerala
Case No.: CRL.MC No. 9251 of 2019
Coram: Justice Kauser Edappagath
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