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Actus Reus And Mens Rea Essential To Attract Offence Under Section 2 Of The Prevention Of Insults To National Honour Act, 1971

What Is The Law Governing The Usage Of The Indian National Flag?

The Indian National Flag, with the tricolours of Saffron, White and Green, and with Asoka Chakra at its Centre, embodies National Unity. Laws and regulations, namely, the Prevention of Insults to National Honour Act, 1971 and the Flag Code of India, 2002 were framed to govern the dignified representation of the Indian Flag. The citizens' duty to respect the ideals of the National Flag was also inserted in the Constitution of India through Article 51-A (a), wherein, it imposes a Fundamental Duty on citizens to inter alia abide by the Constitution of India and respect the National Flag. Let's explore the width of the Right of Hoisting the National Flag and restrictions pertaining to the same.

However, there are other Articles of the Constitution of India that come into play with regard to using the National Flag. One such key Article is Article 19 (1)(a) in Constitution of India, which guarantees to all citizens the 'Right To Freedom Of Speech And Expression'. The Supreme Court in [Union of India Vs Naveen Jindal & Anr., (2004) 2 SCC 510] held that this 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.

Hoisting Flag As A Fundamental Right

In [Union of India vs Naveen Jindal & Anr. (supra), the Supreme Court of India recognised that:
"Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19 (1) (a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation."

However, while doing so, the Supreme Court also opined that the Constitution of India did not confer an absolute 'Right Of Free Speech And Expression' and the same was subject to reasonable restrictions by law under clause 2 of Article 19 (1)(a) of the Constitution of India.

Thus, the Supreme Court stated that so long as the expression (of flying a Flag) is confined to "Nationalism, Patriotism and Love For Motherland", the use of the National Flag by way of expression of those sentiments would be a Fundamental Right, however:
"The pride of a person involved in flying the Flag is the pride to be an Indian and that, thus, in all respects to it must be shown. The State may not tolerate even the slightest disrespect."

The Supreme Court also held that Flag Code is not a law within the meaning of Article 13 (3)(a) of the Constitution of India and hence it could not restrict the free exercise of the 'Right Of Flying The National Flag' under Article 19 (1)(a). However, the Flag Code to the extent it provides for preserving respect and dignity of the National Flag, the same deserves to be followed.

It was further held that the Fundamental Right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under clause 2 of Article 19 of the Constitution of India; The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of the National Flag.

It should be noted that rights under Article 19(1)(a) of Constitution of India are not absolute and can be reasonably restricted by law under clause 2 of the Article.

What Amounts To "Insulting The National Flag"?
Accordingly, there exist restrictions on exercising the Fundamental Right to hoist a Flag. One such restriction on the right has been placed through the Prevention of Insults to National Honour Act, 1971 which regulates the manner in which the National Flag can be used and, more importantly, the manner in which it cannot be used. The legislation was enacted to curb incidents of disrespect to the National Flag.

Section 2 of the Act makes insulting the National Flag a punishable offence, carrying 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, difiles, 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 has two keywords: 'Indian National Flag' and 'disrespect to … the Indian National Flag'.
The Indian National Flag, for the purposes of the Act, means any virtual representation of the Flag made of any substance, which inter alia includes any picture, painting, drawing, photograph etc. [as per Explanation 2 to Section 2]

Explanation 4 defines 'disrespect to the Indian National Flag' as a gross affront or indignity offered to the Flag. It also provides specific instances which amount to disrespecting the Flag. These are:

  • Dipping the National Flag in salute to a person or thing i.e., lowering the Flag as a salute (sub-section (b)).
  • Flying the National Flag at half-mast except on occasions where it is flown at half-mast on public buildings (sub-section (c)).
  • Using the National Flag as clothing to drape someone/something except in State Funerals or Armed Forces or other Para-Military Funerals (sub-sections (d) and (j)).
  • Using the National Flag as part of a costume or accessory which is worn below the waist of a person (sub-section (e)(i)).

In the long list of people being accused of disrespecting the flag are notable names such as Sachin Tendulkar, who cut a tri-coloured caked during the 2007 ICC World Cup, Shahrukh Khan who was photographed waving the National Flag upside down, Mandira Bedi who was booked under Section 2 of the Prevention of Insults to National Honour Act, as she wore a saree with images of the National Flags of participating countries in 2007 Men's Cricket World Cup telecast and the image of the Indian National Flag was below her waist and near her legs; and British musician Chris Martin who stirred a controversy during a concert in India, when he tucked the Indian National Flag in the back pocket of his jeans.

The alleged act that disrespects the National Flag should be intentional. In other words, the accused must have the intention to disrespect or bring into contempt the National Flag. Comments which are critical of the National Flag or the government and are aimed at seeking an alteration of the Flag are not covered by the section.

Interpretations Rendered By High Courts On The Purport Of Section 2 of the Act

The Judiciary, through its Judgments, has laid down a very high threshold for prosecuting someone for disrespecting the National Flag. Only in cases where the intention to disrespect the National Flag was apparent and mala fides were established, can a prosecution under the Act to succeed.

In the case of [Sarvadnya D. Patil & Anr. Vs. State of Goa & Ors., 2001 SCC OnLine Bom 753], the Bombay High Court held that there should be an intentional overt act in order to attract an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971.

The relevant portions of the Judgement are extracted hereunder:
5. It is doubtful 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 clearly indicates positive acts such as burning, mutilating, defacing, defiling, etc. In order to be liable for punishment under Section 2, it is necessary 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 19th December, 2000 i.e. Goa Liberation Day and other days of national importance."

On the other hand, in a case where the action of an accused was a mere mistake lacking an intention to disrespect the National Flag, charges were dropped by the Madras High Court .

In The Publisher, Sportstar Magazine, Chennai v. Girish Sharma, reported in 2000 SCC OnLine Mad 896, this Court, while dealing with a case as to whether an opinion published in a magazine highlighting the importance of the national Flag in light of the Flag being displayed upside down at a sports tournament, held as follows:
10. The reading of the above provision would make it clear that whoever in any public place brings into contempt the Indian National Flag shall be punished.

……. 12. The perusal of the above paragraphs would make it clear that the Indian Flag was placed upside down in the Tournament took place on 8.3.1997, in which Chess was played by V. Anand and Veselin Topalov and the said figure was published by the Publisher, the petitioner herein.

16. For placing Indian Flag upside down, it cannot be stated that the Publisher was in any way responsible. On the other hand, the mistake committed by the Organisers of the Tournament was clearly displayed and depicted through the photograph informing the reading public that the mistake committed by the Organisers in placing the Indian Flag in a wrong way at the beginning stage has been corrected by them even in the middle of the play.

20.Under those circumstances, 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 Act."

Recently Madras High Court in Crl. O P No.15656 of 2020 titled [State Represented by Inspector of Police Vs D. Senthilkumar], while quashing the criminal proceedings against the accused held that:
56. 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.

Will they be feeling great pride in belonging to this great nation, or would the pride of India have come down on the mere cutting of a cake during the celebration? Without any hesitation, this Court can hold that the participants would have felt only the former and not the latter. For proper understanding, let us take a hypothetical case where there is widespread participation in an Independence Day or Republic Day celebration.

During such celebrations, the participants are provided with a national flag to be worn by them. In reality, after the participants leave the venue on completion of the celebrations, they do not continue to possess this Flag forever, and it becomes part of any other waste paper. Will this mean that each of the participants has insulted the national Flag and should be proceeded against under Section 2 of the Act?

The obvious answer is in the negative. If persons are allowed to give such broad meaning to the word 'insult', many will become very uncomfortable and hesitant to handle the national Flag. The National Flag is given during the function as a symbol of our national pride. Once such a feeling is created in the minds of the participants, the purpose for which the national Flag was given or used will be achieved.?

This is not the first Judicial pronouncement establishing that an act allegedly disrespectful of the National flag needs to be intentional for it to amount to a violation of Section 2 of the Prevention of Insults to National Honour Act, 1971.

In the case of [Ajitinder Singh Vs. State of Punjab & Ors, 2000 SCC OnLine P&H 52], the Punjab & Haryana High Court held the following:
7. Flying the National Flag on the Government vehicles does not come within any of the categories mentioned in the aforesaid Section nor does it amount to insult to Indian National Flag. The learned Counsel for the petitioner is not able to draw my attention to any of the provisions of law or authority to show that flying the National Flag on the car used by Respondent No. 5 amounts to insult to the National Flag. A 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 the learned Counsel for the petitioner is also rejected.

In [P.V. Joseph, Vs. State of Kerala, 2016 SCC OnLine Ker 11466], the Kerala High Court held that a prosecution would be unnecessary in a case where there was no intention on the mind of the accused person to dishonour the National Flag.

The relevant portion of the Judgement is extracted hereunder:
4. Going by the decisions noted supra, it seems that the prosecution in this case is quite unnecessary. Apart from that, it seems that there was no intention on the part of the petitioners to dishonour the National Flag. True that it was an omission on their part in lowering the National Flag after the prescribed time. The prosecution seems to be quite unnecessary and therefore, the same can be quashed.

In [A. K. Viswanathan Vs. Angamali Municipality Represented by its Secretary, 2019 SCC OnLine Ker 3978], the Kerala High Court held:
13. In other words, it is indirectly admitted in the complaint that the petitioners had no intention to insult or to show disrespect to the National Flag.

14. ….even assuming that the averment in Annexure-A1 complaint that the National Flag lowered down by the second accused was one hoisted on the morning of 17.08.2015 on the flag post, it cannot be found that he had any intention to insult or to show disrespect to the National Flag by lowering it down. Even as per the averment in the complaint, the petitioners had done so on a misunderstanding that the National Flag which was hoisted on the flag post on the Independence Day was thereafter not lowered down.

Thus, an act would only amount to disrespecting the National Flag if it the person committing the act has an intention of insulting or disrespecting the Flag.

Amendments To The Flag Code Of India, 2002

The Flag Code of India, 2002 was amended Vide Order dated December 30, 2021, permitting National Flags which were machine made, or made of polyester to also be allowed to be hoisted. Before the amendment, such Flags were not allowed to be used and the Tricolour could only be made by hand using Khadi material. Further, Via its order dated 19th July, 2022, the Ministry of Home Affairs also allowed Flags to be flown during day or night. Earlier, the Tricolour could be hoisted only between sunrise and sunset.

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.

Written By: Damini Singh Chauhan, LL. B [The Law School, University of Jammu] - LL. M [O. P. Jindal Global University].
E-mail: [email protected]

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