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On August 15, 2022, India will celebrate its 75th anniversary of independence. The practice of hoisting the national flag is an essential component of commemorating Independence Day. The flag is a dignified national emblem and a representation of national pride.

The Flag Code of India is a system of rules, conventions, and norms that govern the display of India's national flag. The Flag Code of India, 2002, is broken into three sections. Part I provides an overview of the national flag. Part II is concerned with the display of the national flag by representatives of public, private, and educational organizations, among others. Part III is concerned with the display of the national flag by union and state governments, as well as their agencies.

Previously, the display of the national flag was regulated by The Emblems and Names (Prevention of Improper Use) Act of 1950 and the Prevention of Insults to National Honour Act of 1971. The Flag Code of India, 2002, is an attempt to compile all such laws, traditions, customs, and directions for the benefit and guidance of all parties involved. According to the Flag Code of India 2002, the tricolour may be displayed freely in accordance with the flag's honour and dignity.

The Centre amended the Flag Code of India on July 20, 2022, enabling the national flag to be flown both during the day and at night if it is exhibited in the open or on the property of a member of the public. Previously, the tricolour could only be flown between sunrise and sunset. The government previously permitted the use of machine-made and polyester flags in an amendment dated December 30, 2021. Formerly, such flags were not permitted.

The display of the tricoloured flag and the interpretation of the code has been subject to a number of disputes and judgements. A few landmark cases regarding the Flag Code, 2022 are explored below.

Union Of India vs Naveen Jindal & Anr

Supreme Court of India [Appeal (civil) 2920 of 1996]

Overview

The case is a landmark decision in remodelling India's flag usage. Naveen Jindal, an industrialist, petitioned the Delhi High Court after being barred from flying the national flag in line with India's Flag Code.The Court ruled that the freedom to fly the flag can be viewed as an expression of a person's allegiance and pride in their country. However, the Court clarified when this privilege might be subject to certain reasonable statutory limitations.

Facts

  • Jindal was in charge of his company's plant in Raigarh, Madhya Pradesh, and was displaying the national flag at his factory's headquarters. Government officials refused to allow him to do so on the grounds that it is prohibited under the Indian Flag Code.
  • In response to the aforementioned action, the respondent filed a writ petition with the High Court, arguing that no legislation could ban Indian nationals from flying the National Flag.
  • The freedom to fly the national flag being a basic right, the Flag Code, which contains only executive directives from the Government of India and so is not a law, cannot be judged to have placed reasonable limits in this regard within the meaning of clause (2) of Article 19 of the Constitution of India.
  • The petition was granted by the High Court, which ruled that the Flag Code of India was not a lawful limitation on the right to free speech under Article 19 of the Indian Constitution. According to Article 19(2), the only permissible limits on this privilege were those specified in legislation, according to the High Court. Such restrictions on the flying of the national flag may be found 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 with the Supreme Court against this verdict, arguing that whether citizens were allowed to fly the national flag was a policy issue that could not be influenced by the courts.

Analysis

The Union of India made the following submissions in relation to the case:

  • That the Central Government has the jurisdiction under Section 3 of the Emblems and Names (Prevention of Improper Use) Act of 1950 to set limits on the use of the National Flag in a public place or facility and to control the same;
  • That the limits imposed by the Act and directives made by the Government are legally lawful as reasonable restrictions on Freedom of Speech and Expression under Article 19(2) of the Constitution.
  • That the issue of allowing free use of the national flag or restricting its usage is a policy decision accessible to the Parliament and the Government. Because it is a legally valid policy option, the courts should not intervene.
  • The Supreme Court considered three essential factors in determining whether the Flag Code is a law under Art. 13(3)(a), namely: 1. the gravity of the significance of the national flag, 2. Constituent Assembly debates, and 3. rules in other nations.
  • The Court noted that India's policy had been to limit the usage of its national flag in order to ensure that it was not dishonoured and that it was treated with respect. The Court warned that a more permissive approach to flying the national flag might lead to disrespect, exploitation, or indiscriminate usage of the flag. However, the Court acknowledged that merely permitting specified persons and bodies to fly the flag may cause unhappiness among some residents.
  • The Court assessed whether the Indian Flag Code constituted "law" within the sense of Article 13 of the Constitution, which defined "law" in the context of basic rights. The Court determined that the Indian Flag Code was only executive directives and could not be called "law." As a result, the Indian Flag Code could not be utilised to establish a legislative right to fly the national flag in India.
  • The Supreme Court eventually agreed with the High Court and declared that the freedom of a private individual to display the national flag was a basic right protected by Article 19(1). (a). At the same time, this right was not unlimited and was subject to the reasonable constraints set forth in Article 19. (2).
  • The Court also concluded that a fundamental right and a fundamental obligation are inextricably linked and that if the former is given, the latter cannot be dismissed.

Inspector of Police v D. Senthilkumar

Madras High Court [Crl.MP.No.5974 of 2020]

Overview

A criminal petition alleging an insult to the nation's honour when a cake with the national flag on it was cut at a public ceremony was dismissed by the Madras High Court in this landmark judgement. The decision has been praised for its forward-thinking views on patriotism and national symbols. The court was hearing arguments on a plea filed by the state government contesting a magistrate's order taking cognizance of a complaint lodged by a private individual and ordering the registration of an FIR for breaching Section 2 of the Prevention of Insults to National Honour Act.

Facts

  • The private complainant claimed that on December 25, 2013, at a public Christmas function, a cake measuring 6 ft. length and 5 ft. breadth, iced with a tri-color Indian map outlined with the Ashoka Chakra in the centre, was cut, shared, and consumed by special guests and approximately 2500 participants, including 1000 children.
  • According to the complaint, the District Collector of Coimbatore, the Deputy Commissioner of Police, and numerous other religious leaders and individuals from a number of Non-Governmental Organizations attended the abovementioned occasion.
  • The complainant claimed that the portrayal of the Indian National Flag on the cake and its cutting constituted an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971.

Analysis

  • The counsel for the state stated that even if the claims in the complaint are true, they do not constitute an offence under Section 2 of the Act. The allegation was based only on written records, and the complainant had no personal knowledge of the function held on December 25, 2013.
  • The complainant submitted that the tricolour Indian flag should not have been represented on the cake, and cutting such a cake is an insult to the National Flag. The complaint explicitly cited Explanation 2 to Section 2 of the Act, claiming that the cake in the shape of an Indian map in tricolour would fall under the words "made of any material or depicted on any substance."
  • The court opined that the Flag Code does provide a method for destroying flags in private, in a manner compatible with the dignity of the Flag, and it should be followed in letter and spirit by every responsible citizen.
  • Reliance was placed on a Supreme Court ruling in Dr. B. Singh v. Union of India [2004 (3) SCC 36], publications in a newspaper, journal, or magazine should not be considered gospel truth, and the court must seek resources to support the validity and trustworthiness of the information released in the media.
  • Because not everyone will be aware of this method, they will not be liable for an offence under Section 2 of the Act on their own. This Court emphasised the point that a wayfarer should not be permitted to subject individuals to criminal prosecution for benign conduct that cannot be regarded as an insult in order to make it an offence under Section 2 of the Act.

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

Bombay High Court [CRIMINAL APPLICATION NO. 440 OF 2018]

Overview

In this case, it was determined that the offence of failing to dip the flag after sunset does not come under any of the circumstances listed in Explanation 4 or Section 2 of the Prevention of Insults to National Honour Act. Therefore, even if the allegations in the complaint are accepted superficially, they may not necessarily constitute a violation under Section 2 of the aforementioned Act. According to the report, the applicant hoisted the flag on January 26th, 2018, but failed to lower it after sunset, committing an offence punishable under Section 2 of the Prevention of Insults to National Honour Act 1971.

Facts

  • According to the report, the applicant hoisted the flag on January 26th, 2018, but failed to lower it after sunset, committing an offence punishable under Section 2 of the Prevention of Insults to National Honour Act 1971.
  • The petitioner claimed she was innocent and has been wrongfully accused. Section 2 is unconcerned in the case's facts. Not lowering the flag at night, i.e. after sunset, is not a form of aggression and does not offend the dignity or honour of the National Flag.
  • It was argued that just failing to lower the flag after sunset does not constitute an offence because the Flag Code does not specify any punishment. As a result, she has requested that the FIR be dismissed.
  • The application was challenged on the grounds that failing to lower the national flag after sunset displays disrespect to the Indian National Flag, and hence Section 2 of the aforementioned Act is invoked.

Analysis

  • The petitioner argued that even if one accepts the contents of the FIR as they are, they do not fall under the purview of Section 2 of the Prevention of Insults to National Honour Act 1971.
  • The court stated that in clauses (a) to (d), Explanation 4 specifies several acts of disgrace (l). A perusal of the stated provision discloses that one of the key parts of the said infraction is that disrespect, scorn, or contempt for the flag be deliberate. Similarly, Explanation 4 provides several examples of disrespect for the Indian National Flag. The offence of failing to lower the flag after sunset does not come under any of the circumstances listed in Explanation 4 or Section 2 of the aforementioned Act.
  • It was further opined that even if the allegations in the complaint are accepted at face value, they do not constitute an offence under Section 2 of the aforementioned Act.
  • In terms of the Flag Code, it is neither an Act, nor is it issued under any of the statutory provisions of the said Act, and so it is not a statutory law established by the competent. As a result, when the facts of the case fail to reveal the commission of any offence and there is only non-observance of the Flag Code, such non-observance, which is not a law within the meaning of Article 13(3)(a) of the Indian Constitution, cannot be deemed to be covered under Section 2 of the

Conclusion

From the above judgements, it can be inferred that the position of the court is that state and its citizens should not engage in veiled patriotism for the sake of registering complaints without first comprehending the real legislation. By pestering a citizen for no reason, one disgraces the very nation whose honour one seeks to safeguard with such complaints. It must thus be considered if the cutting of a cake carrying the national flag or not lowering the flag after sunset should result in punishment.

The new Flag Code reflects the Court's progressive approach toward the national flag. It has emphasised the value of free expression and the extent to which it may be permitted by allowing individuals to use it freely, relying on the safe supposition that citizens are fully aware of their duties and obligations to give the flag the dignity it deserves.


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