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This article is written by Rida Zaidi, from the Faculty of Law, Aligarh Muslim University. This article deals with the Flag Code of India, laws regarding it and the National Symbols of India and the case laws surrounding the same. 

This article has been published by Diva Rai.

Table of Contents

Introduction

The Indian National flag is perceived as a symbol of allegiance to one’s nation and is an emotion. It has to be honoured and respected by every individual of the country. Earlier there were many rules and conventions regarding the protection of the glory of the Indian National Flag, but there was, as such, no code prevailing regarding the proper display of the National Flag at various institutions and organizations and which would frame the rules as to how it has to be done to maintain the dignity of the Indian National Flag. The Flag Code came into force in 2002 superseding the earlier ‘Flag Code’ mentioned in a protocol of 1982 by the website of the Punjab Government.

The Indian National Flag represents the hopes and aspirations of several martyrs who sacrificed their lives to get to where we are today. The National Flag is esteemed by everyone yet sometimes we may unconsciously or consciously demean its prestige by our actions or gestures because we are not well versed with the code and conduct that needs to be adhered to. The Prevention of Insults of the National Honour Amendment Act, 2003 lays down the practices that are not permitted as they demean the dignity of the National Flag, Constitution and our National Emblem. The States Emblem Act of India (2005) also known as the Improper Use Act, 2005 prescribes the regulation regarding where the National Emblem could be used and where it is prohibited. There has been a very high threshold of cases where people have violated the laws and rules which are to be followed but people have neglected it which eventually has resulted in penal consequences under the Indian Penal Code. 

Constitutional perspective

Under the Indian Constitution, Article 51A has imposed a non-binding duty upon its citizens to respect and adhere to the Constitution and the National Flag of the Country. Another provision is Article 19(1)(a) which deals with freedom of speech and expression which involves the right to fly the National Flag. Freedom of speech and expression under Article 19(1)(a) is not an absolute right and is subject to restriction under Clause 2 of the Article. The Prevention of Insults to the National Honour Amendment Act, 2003 embraces to honour the national Symbols such as the National Flag and the National Anthem. The Act prohibits the disparagement of National Symbols. Under Section 2 of the Act if any person in a public place or under the view of public mutilates, burns, disfigures or defiles the National Flag he shall be punished with imprisonment of either description which may extend to three years or with fine or both. 

Penal policy

The Flag Code is merely a regulating code to protect the honour and grandeur of the Indian National Flag and to prohibit its contempt and disregard. The code is not a statute and thus if a person is punished under this code he is not criminally liable but only booked for violating the code. The Prevention of Insults to National Symbols Amendment Act, 2003 and the Prohibition of Improper Use Act, 2005 are statutory laws and if a person commits an offence under these laws he shall be liable for the same as prescribed under the statutes. 

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

The Flag Code of India came into force on 26th January 2002 superseding ‘The Flag Code India’ as existed then. The code is divided into three parts. 

  • The first part describes the general description of the National Flag.
  • The second part prescribes the display of the National Flag by various organizations and educational institutions whether private or public. 
  • The third part prescribes the display or hoisting of the National Flag by the central and state government or their organizations or agencies. 

Legal anatomy

The legal anatomy of the Indian National Flag is governed by the Flag Code 2002 which prescribes the structure of the Indian National Flag. Part 1 of the Flag code describes that:

  • The Indian National Flag has to be rectangular, that is there have to be three rectangular dashboards of equal width and in the middle panel, there has to be an Ashoka Chakra containing 24 strokes of equal measure. 
  • Each panel is of different colours indicating an aspect that is embedded in the Indian Culture. The topmost panel is of saffron colour which represents courage and sacrifice, the colour of the middle panel is white which represents truth and peace and the third panel is of green colour which represents faith and chivalry.
  • The Ashoka chakra in the middle represents continuous growth because if something does not move or grow it ultimately dies as it was stagnant. 
  • The Indian National Flag can be made only by handwoven cotton, wool or khadi. 
  • The ratio of the flag from its length to its height is 3:2.
  • The standard dimensions of the flag are: The Flag code states that the tricolour can be of nine standard dimensions — 6300 x 4200, 3600 x 2400, 2700 x 1800, 1800 x 1200, 1350 x 900, 900 x 600, 450 x 300, 225 x 150 and 150 x 100 (all sizes in mm). 
  • The manufacturing process can only begin when the standard protocols led by the Bureau of Indian Standards are encountered. 

For example, whenever any dignitary of the state passes away the flag has to be half-masted on the government buildings to portray the period of grief and mourning, displaying the National Flag on the same height with other flags is not permitted as the sanctity of the National Flag is above all the other flags etc. 

There have been several incidents of violating the honour of the National Flag such as in 2007, a notice was sent to cricketer Sachin Tendulkar who was seen in a video cutting a cake which was in the form of the National Flag having tricolour. Another incident was of Mandira Bedi where she was sent a notice as she wore a saree displaying the National Flag. In yet another incident, Shahrukh Khan was seen holding a flag upside down during a World Cup match.

In the case of Union of India v. Naveen Jindal (2004), the petitioner Naveen Jindal was prevented from flying the National Flag above his office premises under the Flag Code of India. He filed a petition before the High Court that he was being restricted from doing so. Flying the National Flag falls under Article 19(2) of the constitution and is a symbol of free spirit and allegiance to one’s Country. Allowing only the officials and high dignitaries to fly the National Flag would be discriminatory for the rest of the people under Article 14 as everyone is entitled to fly the National Flag.

The High Court pronounced that the Flag Code is only an executive instruction given by the Government and is not a statute. Union of India filed a petition seeking an answer to the above-mentioned query to which the Supreme Court ruled that every country has its rules and regulations regulating the protection of the honour of the National Flag and the Flag Code of our Country too is a regulating guide so that the glory of the flag is maintained and no individual disrespects or dishonours it. But it does not mean that the people are not permitted to fly the National Flag only out of the fear that they may disrespect it.

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

The Prevention of Insults to National HonourAct, 1971 came into force on 23rd December 1971 and imposes a binding duty upon the citizens of India not to dishonour and disrespect the sanctity and grandeur of the national symbols which includes the National Flag, National Anthem, Constitution etc. The Act imposes a duty upon the citizens to abide by the provisions laid down in the Act and if any individual disobeys the laws he is entitled to imprisonment of either description which may extend to 3 years or more or fine or both. Section 2 of the Act says that if anybody expresses insult or disregard to the National Flag or Constitution in a public place such as defiles, disfigures, mutilates, tramples or burns the National Flag would be liable for imprisonment as prescribed under the Act. 

Section 4 deals with what amounts to disrespect to the National Flag which is- 

  1. Dipping the flag in salute to another person, hoisting the flag half-masted except on occasions when the government directs. 
  2. Using the National Flag as a drapery, costume, dress, uniform or accessory. 
  3. Using the National Flag as in inscription or printing or embroidering the National Flag on cushions, handkerchiefs, napkins etc. 
  4. It does not need to be an actual National Flag but if it includes any visual representation, picture, painting etc. The test to inflict liability upon an accused under the Prevention of Insults to National Honour Act, 2003 is the intention to disrespect or criticize the National Symbols such as the National Flag, National Anthem and the Constitution. It has to be proved beyond reasonable doubt that the suspect intended to dishonour the National Symbols and the burden is laid upon the prosecution. 

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

The State Emblem of India Act was adopted on 26th January 1950 and came into force on 25th December 2005 as a bureaucratic symbol for issuing official documents of the Government. The preamble of the Act says that the Act aims to prohibit the improper use of the National Emblem for commercial and professional purposes. The National Emblem is printed on the Passports as a symbol of an official document of the citizen. It consists of three lions facing towards frontways mounted on an abacus and a dharma chakra with a bull on the right and a galloping horse on the left and outlines of dharma chakra on the extreme right and left which is adopted as the State Emblem of India on which it is written in Devanagari script ‘Satyamev Jayate’ meaning thereby truth alone triumphs. 

The Emblem is defined under Section 2 of the Prohibition of Improper Use Act, 2005 as the official seal of the government. Section 3 of the Act describes that no person can use the emblem or the design of the emblem portraying that he is related to the government either central or state or giving an impression that certain documents are official documents failing to comply with these guidelines the violator would be punished under this Act. Under Section 6 of the Act, the central government may legislate laws regarding the use of the National Emblem as the official seal in governmental offices and the offices of diplomats functioning abroad subject to the conditions as prescribed under the Act. 

The Prohibition of Improper Use Act, 2005 protects the common man from being exploited in situations where there is ambiguity regarding the functioning of an organization or institution whether it is governmental or non-governmental as the Act prohibits the use of national symbols including the National Emblem for unofficial usage. Rule 10 of the Prohibition of Improper Use Act, 2005 restricts certain persons or associates from operating the National Emblem under certain circumstances which are as follows-

  1. An individual who has ceased to function as the dignity of the government cannot use the national emblem.
  2. No non-government organisation, department or PSU’s can employ the National Emblem.
  3. No functionary or department which is not directly related to the government can employ the National Emblem in their notification, newsletter, columns etc.
  4. Section 4 of the Act prohibits the usage of the National Emblem for any trade, business or profession or using it with a patent under their title or claiming the trademark for the design etc.

Case laws

  1. PV Joseph v. State of Kerala (2010)

In this case, the prosecution alleged that the petitioners violated Section 2 of the Prevention of Insults to National Honour Act, 2003 by not lowering the National Flag upon their co-operative society after 9:30 pm. The Explanation for Section 4 deals with various instances that amount to disrespect of the National Flag under the Flag Code. The Court held that Flag Code as held by the Court in the case of Naveen Jindal v Union of India that it is only an executive code of conduct and has to be compulsorily observed but cannot attract penal consequences unless it involves a statutory offence and is a non-binding duty upon the citizens. The Court also observed that there was no intention of the petitioners to dishonour the National Flag and thus the petitions were dismissed and quashed.

  1. Kantilal Bhuria v. Sanjay Sarvaria (2012)

In this case, a union minister of state was travelling in a vehicle that fetched the National Flag having a hole in it. The prosecution asserted that he was addressed regarding the condition of the flag but he ignored it. The Court held that though it is envisaged under Article 51(1)(a) of the Constitution to respect and honour the National Flag but still after analysing the entire scenario on its face value no offence as such can be made out of it for which the petitioner could be punished and thus the complaint was quashed.

  1. Inspector of Police v. D. Senthilkumar (2018)

In this case, a complaint was filed where a cake was cut having the picture of the National Flag upon it which was alleged to have violated Section 2 of the Flag Code. Regarding it, the Magistrate directed the police to file an FIR which was appealed before the High Court by the police. The Court held that the true test is the intention to disregard or insult the National Flag. The term patriotism was defined in this case. It was stated that “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. 

  1. Gaurishankar Garg & another v. the State of Madhya Pradesh (2020)

In this case, the petitioners were made to be punished under Section 2 of the Prevention of Insults to National Honour Act, 2003 where the petitioners were alleged for flying the National Flag between sunset and sunrise. The Court held that the hoisting of the flag during the said period may be out of forgetfulness or misconduct but it does not amount to an offence unless it is specified under the Flag Code of India. The Flag Code is not a law according to Article 13(1) and is only an executive instruction by the government.

  1. Veecon media & Broadcasting Pvt. Ltd. v. Union of India (2018)

In this case, the TV channel which was earlier named ‘Harvest TV’ wanted to change its name to Tiranga TV. The proposal was rejected by the Ministry of Information and Broadcasting on the grounds that it violates the Prevention of Improper Use Act 2003 which was quashed by the tribunal. The tribunal held that the word ‘Tiranga’ without the colours of the National Flag does not amount to a violation under the concerned Act; moreover, the word Tiranga was not initially included in the schedule of the emblem Act. It does not amount to a colourful imitation of the National Flag under the Prevention of Improper Use Act, 2003.

  1. V.K. Naswa v. Union of India (2012)

In this case, the Court held that there is absolutely no mandate in the Flag Code of India which prescribes the hoisting of the National Flag on all days on the public buildings.

  1. Bijou Emmanuel v. State of Kerala (1986)

In this case, the Court held that it is mentioned under Article 51(a) of the Constitution which has guided all the citizens of India to abide by the Constitution and to respect the national anthem, National Emblem etc. and the mere ground of not singing the national anthem does not amount to the expulsion of the students from their school as it amounts to violating their fundamental rights under Article 19(1)(a) and Article 25(1). The citizens are expected to stand and pay respect to the national anthem whenever it is sung.

  1. Hans Raj Jain v. the Election Commission of India (2009)

In this case, the petitioner was of the view that the logo used by the Aam Aadmi party resembles the Ashoka Chakra of the National Emblem and the party has been registered fraudulently. The Court held that the logo is not at all a colourful imitation of the Ashoka chakra and there is no merit in the case and was dismissed.

Conclusion

The Flag Code of India is an executive instruction by the Government of India which imposes a non-binding duty upon the citizens to honour and respect the National Flag of the country and regulates the conduct of the people so that people may not knowingly or unknowingly portray disregard to the National Flag. The Flag Code prescribes the general description of the structure of the flag and the requirements which are to be met. The Prevention of Insult to National Honour Act, 2003 lays down what amounts to disrespect to the national symbols.

It prescribes that any person who dishonours or disrespects the national symbols would be imprisoned of either description for a term which may extend to 3 years or more or fine or both. Similarly, the Prohibition of Improper Use Act, 2005 has designated the National Emblem as the bureaucratic symbol of the country for all official documents. The Act gives clarity to the ambiguity which may arise while distinguishing between a public or private functionary or organisation. It lays down the rules as to who can employ the use of the National Emblem and who are restricted from doing so. A variety of judgements have arisen where courts have relied on the principles envisaged under these Acts.

References

  1. https://www.theleaflet.in/breaking-down-the-law-governing-usage-of-indias-national-flag/
  2. https://blog.ipleaders.in/overview-state-emblem-india-prohibition-improper-use-act-2005/
  3. https://globalfreedomofexpression.columbia.edu/cases/union-india-v-jindal/
  4. https://www.latestlaws.com/articles/usage-of-Indian-national-flag-laws-and-case-laws/#:~:text=Section%202%20of%20the%20Act,%2C%20or%20fine%2C%20or%20both.&text=Explanation%204%20describes%20’disrespect%20to
  5. https://blog.ipleaders.in/analysis-jurisdiction-national-honour-act-1971/ 

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