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How The Legal Construct Of National Honour Encourages Toxic Nationalism?

The Flag Code of India, 2002 opens with a declaration that the Indian National Flag represents the hopes and aspirations of the people of India, and it is a symbol of our National Pride.
The Historical Significance of The National Flag of India and The Constituent Assembly (Constituent Assembly of India Debates (Proceedings) - Volume IV, Tuesday, the 22nd July 1947, Resolution Re. National Flag).

In 1921, a student named Pingali Venkayya presented a flag design as a distinctive symbol representing its nationalist objectives and rallied the millions. With changes over the next few decades, the present Flag in its colours, design and proportion was adopted as the National Flag of India.

Pandit Jawaharlal Nehru, when moving the Resolution regarding the National Flag before the Constituent Assembly of India on 22nd July 1947, said:
"This Resolution, Sir, is in simple language, in a slightly technical language, and there is no glow or warmth in the words that I have read. Yet I am sure that many in this House will feel that glow and warmth which I feel at the present moment for behind this Resolution and the Flag which I have the honour to present to this House for adoption lies history, the concentrated history of a short span in a nation's existence.

Therefore, this Flag that I have the honour to present to you is not I hope and trust, a Flag of Empire, a Flag of Imperialism, a Flag of domination over anybody, but a Flag of freedom not only for ourselves, but a symbol of--freedom to all people who may see it. (Cheers). And wherever it may go-and I hope it will go far,--not only where Indians dwell as our ambassadors and ministers but across the far seas where it may be carried by Indian ships, wherever it may go it will bring a message, I hope, of freedom to those people, a message of comradeship, a message that India wants to be friends with every country of the world and India wants to help any people who seek freedom. (Hear, hear). That I hope will be the message of this Flag everywhere."

Sir S. Radhakrishnan added, "the Flag links up the past and the present. It is the legacy bequeathed to us by the architects of our liberty."

Mr. Frank R. Anthony, in his speech, said that "This Flag flies today as the Flag of the Nation, it should be the duty and privilege of every Indian not only to cherish and live under it but if necessary, to die for it."

Dr. Joseph Alban D'Souza prayed, "Vivat, Crescat, Floreat India", "May India under the aegis of this Flag live, grow and flourish".

Mr. Chaudri Khaliquzzaman said, "I know that a flag to look at, is simply a piece of cloth but a country's flag symbolises its ideals and its aspirations, both moral and spiritual."

Pandit Govind Malaviya observed:
"As I have already stated, when a flag or any other thing is accepted by a nation as its ensign, it becomes the dearest object of the nation and assumes the most important and the highest place in the life and history of that nation. This, our Flag, has been the symbol of the hopes and dreams of our hundred million souls for the last 27 years. For the honour of this flag millions holding it dearer than their lives, suffered tremendously. Numberless people went to jails leaving their children starving. People had their heads and bones broken by the lathis of police and the military to keep it aloft. Unarmed young men and students of the country opened their chests before the bullets of the English military or police to protect the honour of his Flag. For generations it has been our Flag and the great feeling, emotion and enthusiasm we have in our hearts for this Flag is beyond human description."

A symbol is a mark, sign, or word that indicates, signifies, or is understood as representing an idea, object, or relationship. A Country's National Flag is a symbolic manifestation intended as an inclusive, representative and integrated comity. The National Flag, therefore, conjures a rush of pride in the whole being of its citizens.

Rejecting what is symbolic of a Nation brings to mind the words of the character Philip Nolan in Edward Everett Hale's short story 'The Man without a Country', "Remember, boy, that behind all these men... behind officers and government, and people even, there is the Country Herself, your Country, and that you belong to her as you belong to your own mother. Stand by her, boy, as you would stand by your mother...!".

Constitution Of India, 1950 and The Prevention Of Insults To National Honour Act, 1971

Article 19 (1)(a) of the Constitution of India guarantees all citizens, 'right to freedom of speech and expression.' However, the right is not absolute and is subject to reasonable restrictions, and the law on the same is settled. Article 51-A (1) of the Constitution of India simultaneously lays down that citizens are duty-bound 'to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.'

The earliest legislation on the subject of 'insults to national honour' in India was enacted by the State of Tamil Nadu in the year 1957. The Prevention of Insults to National Honour Act, 1957 (Tamil Nadu Act No. XIV of 1957) was enacted in the wake of the Anti-Hindi Agitation Movement in order to 'prevent certain offences against the Indian National Flag, pictures, effigies and statutes of the Father of the Nation, or the Constitution of India.'

Section 4 of The Prevention of Insults to National Honour Act, 1957 made the 'burning etc., of Indian National Flag' as an offence punishable with imprisonment for a term which may extend to 3 years or with fine or both. The explanation to the provision clarified that the term 'Indian National Flag' includes 'any pictorial representation thereof'.

This Act is, therefore, the precursor to The Prevention of Insults to National Honour Act, 1971 (Act No. 60 of 1971), legislated by the Parliament. The Introduction to the Act highlights that the need for a law on this subject was imperative in the wake of 'incidents involving deliberate disrespect to the National Flag, the National Anthem and the Constitution and the need to 'prevent the recurrence of such incidents.'

The Statement of Objects and Reasons of the Act is extracted hereunder so as to set clarity to the malice that the law set out to handle and eliminate: "Cases involving deliberate disrespect to National Flag, the National Anthem and the Constitution have come to the notice in the recent past. Some of these incidents were discussed in both the Houses of Parliament and members expressed great anxiety about the disrespect shown to the national symbols. Government were urged to prevent the recurrence of such incidents.

Disrespect to the National Flag and the Constitution or the National Anthem is not punishable under the existing law. Public acts of insults to these symbols of sovereignty and the integrity of the nation must be prevented. Hence the Bill. The scope of the law is restricted to overt acts of insult to and attack on, the national symbols by burning, trampling, defiling or mutilating in public. It is not intended to prohibit honest and bonafide criticism of the symbols, and express provisions to this effect have been made in the Bill."

Under the scheme of the Act, Section 2 penalizes any act which insults the Indian National Flag and the Constitution of India with imprisonment, which may extend to 3 years or with fine, or with both. Explanation 1 exempts any comments or criticism that are made with a view to obtaining an amendment of the Constitution or alteration of the Flag. Explanation 2 to Section 2 elucidates as to what constitutes "Indian National Flag". Explanation 3 expresses what "public place" occurring in Section 2 is. Explanation 4 analyses what disrespect to the Indian National Flag means and includes.

Subsequently, the Flag Code of India, 2002 was brought into force as an attempt to bring together the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Act, and 'all such laws, conventions practices and instructions' issued by the Government from time to time with respect to the display of the National Flag and the manner thereof.

Clause 2.1. of Section I of the Code provides that "There shall be no restriction on the display of the National Flag by members of the general public, private organisations, educational institutions etc., except to the extent provided in the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 and any other law enacted on the subject."

The Code, however, does not have the force of a statute and is not 'law' under Article 13 (3)(1) of the Constitution of India as held by the Hon'ble Supreme Court in ["Union of India Vs. Naveen Jindal & Anr", 2004 (2) SCC 510]. It contains a set of procedures and parameters to be followed while using the Flag.

A comprehensive reading of the provisions extracted herein above would show that the Act seeks to lay a reasonable restriction over the fundamental right to expression guaranteed by the Constitution of India under Article 19 of Constitution of India by laying down the parameters that would circumscribe certain overt acts to be beyond such threshold, moving into the realm of causing deliberate insult to the National Flag, the Constitution and emblems thereof. It further provides for the proprieties to be observed while displaying the National Flag.

Provisions of the Flag Code of India, 2002

Unlike the 1971 Act, the Flag Code of India, 2002 is not placed on the footing of a statute. Rather, the Flag Code is a set of Executive instructions as to proper use of the National Flag. In Naveen Jindal (cited supra), the Supreme Court took into account three important dimensions in order to find out an answer to the question of whether the Flag Code is a Law under Art. 13(3)(a) namely:
  1. Importance of National Flag,
  2. Constituent Assembly Debates and
  3. Rules existing in other countries.

The relevant portions of the Judgment are extracted hereunder:
The question, however, is as to whether the said Executive Instruction is "law" within the meaning of Article 13 of the Constitution of India. Article 13(3)(a) of the Constitution of India reads thus:
13. (3) (a) "Law" includes any Ordinance, order bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

A bare perusal of the said provision would clearly go to show that executive instructions would not fall within the aforementioned category. Such executive instructions may have the force of law for some other purposes; as for example those instructions which are issued as a supplement to the legislative power in terms of clause (1) of Article 77 of the Constitution of India. The necessity as regard determination of the said question has arisen as the Parliament has not chosen to enact a statute which would confer at least a statutory right upon a citizen of India to fly a National Flag.

An Executive Instruction issued by the appellant herein can any time be replaced by another set of Executive Instructions and thus deprive Indian citizens from flying National Flag.

Furthermore, such a question will also arise in the event if it be held that right to fly the National Flag is a fundamental or a natural right within the meaning of Article 19 of the Constitution of India; as for the purpose of regulating the exercise of right of freedom guaranteed under Article 19 (1)(a) to (e) and (g) a law must be made.

The Court further held that:
(iv) Flag Code although is not a law within the meaning of Article 13 (3)(a) of the Constitution of India for the purpose of clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying the national Flag."

Essential Ingredients To Attract An Offence Under Section 2 Of The of the Prevention of Insults to National Honour Act 1971.

For any act to be termed as an offence under Section 2, Actus Reus and Mens Rea should be established. The Actus Reus being any of the actions in Section 2 and Explanation 4 and the Mens Rea being the intention to show disrespect or contempt. As to what constitutes an offence, the decisions of the Hon'ble Supreme Court and various High Courts are extracted hereunder.

The High Court of Bombay in [Amgonda Vithoba Bandhare Vs Union of India, 2012 (4) Mh.L.J 768] held that:
7. Explanation 4 mentions various acts of dishonour in clauses (a) to (l). Perusal of the said section clearly reveals that one of the essential ingredients of the said offence is that disrespect, contempt of the Flag should be intentional. Similarly, Explanation 4 gives various instances of disrespect to the Indian National Flag. The offence of not lowering down the Flag after sunset does not fall either in the various instances which are mentioned in Explanation 4 or in Section 2 of the said Act. The averments in the complaint, therefore, even if they are accepted at its face value, does not constitute an offence within the meaning of Section 2 of the said Act.

8. So far as the Flag Code is concerned, the said Flag Code is not 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.

9. The Apex Court had occasion to consider whether the Flag Code has any statutory course and in the case of Union of India v/s Navin Jindal & anr., decided on 23.1.2004 in Civil Appeal No.453 of 2004, after going through various sections and parts of the Flag Code, the Apex Court came to the conclusion that the Flag Code contains executive instructions of the Central Government and, therefore, it is not a law within the meaning of Article 13 (3)(a) of the Constitution of India. In view of the ratio of the judgment of the Apex Court, therefore, it cannot be said that violation of the instructions which are given in the Flag Code would amount to an offence which is punishable under Section 2 of the said Act."

Relying on Amgonda (cited supra), the Bombay High Court held the following in the case of ["Dr. Varsha Vs State of Maharashtra" 2018 SCC OnLine Bom 2805 : (2019) 1 AIR Bom R (Cri) (NOC 12) 5];

9. In Amgonda (Supra). It has been observed:
7. Explanation 4 mentions various acts of dishonour in clauses (a) to (l). Perusal of the said section clearly reveals that one of the essential ingredients of the said offence is that disrespect, contempt of the Flag should be intentional. Similarly, Explanation 4 gives various instances of disrespect to the Indian National Flag. The offence of not lowering down the Flag after sunset does not fall either in the various instances which are mentioned in Explanation 4 or in Section 2 of the said Act. The averments in the complaint, therefore, even if they are accepted at its face value, does not constitute an offence within the meaning of Section 2 of the said Act.

8. So far as the Flag Code is concerned, the said Flag Code is not 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 do not disclose commission of any offence and 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, it cannot be said to be covered under Section 2 of the Prevention of Insults to National Honour Act 1971."

From a perusal of the penalising provision and even the Statement of Objects and Reasons to the Act, what is deduced is that Mens Rea, i.e., to cause insult, show disrespect or to bring into contempt towards the National Flag or The Constitution is seen at a high threshold. The intention to commit such an act must be so malafide and apparent to attract an offence under Section 2 of the of the Prevention of Insults to National Honour Act 1971.

The Union Ministry of Home Affairs had also issued The Flag Code of India, 2002, with the aim of regulating the usage of the National Flag. However, Courts have consistently held that the Code is not 'law' for the purposes of restricting one's rights under Article 19 (1)(a) of the Constitution of India. Therefore, The Flag Code of India, 2002 is only an Executive Instruction by the Government and is a mere Code of Conduct, violation of which does not carry any penal consequences (as per the Supreme Court in Naveen Jindal's case, referred to earlier).

The Flag Code of India, 2002 serves as a set of Rules to safeguard the dignity of the Indian National Flag and since it is not a law, anyone who is penalised for breaking it will merely be booked and not held criminally responsible. Criminal responsibility for disrespecting the National Flag can only be attracted under statutory laws including the Prevention of Insults to National Symbols Amendment Act, 2003 and the State Emblem of India (Prohibition of Improper Use) Act, 2005.

Conclusion
D.D. Basu, in his seminal commentary on the Constitution of India, opines that it is expected that a citizen should be his/her own monitor while exercising and enforcing his/her Fundamental Rights remembering that he/she owes the duties specified in Article 51-A to the Constitution of India and that if he/she does not care for the duties, he/she should not deserve the rights. A right is thus the antithesis of a duty. A Fundamental Duty is thus not a source of Legislative Power for the Judiciary.

The National Flag does not generate meanings on its own and hence how a person perceives it is highly subjective. As Justice Jackson opined in the famous Compulsory Flag Salute case, "What is one man's comfort and inspiration, is another's jest and scorn". When the Constitution of India enshrines liberty of thought, belief and expression, the law ought to accommodate diversity of beliefs.

The State should not only refrain from generating a homogenous narrative on National Honour but also not empower interlopers to use vague laws to exterminate mellow narratives and practices pertaining to National Honour. Criminal law ought to be confined to protecting lives, limbs and property instead of being used to coerce uniformity.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected]; [email protected]

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