Law governing the usage of India’s National Flag

Recently the Madras High Court delivered a judgment concerning the Indian National Flag, which has garnered significant applause. The judgment has been lauded for its progressive observations on patriotism and national symbols. At a time, when there is a rise in hyper nationalism and every government is trying to portray itself as a patriot, the judgment is a reminder of what patriotism truly means.

In the present post, I shall discuss the judgment and the law governing the usage of the Indian National Flag (‘National Flag’). A discussion on this law is important because time and again we read about criminal complaints filed against citizens, for allegedly disrespecting the flag. Often, these complaints are frivolous and are mere acts of hypersensitivity and nationalism. The post attempts to clarify the law and hopes that it will educate citizens before they approach the police and the Courts.

Part I shall briefly explain the law governing the usage of the flag. Part II shall discuss the judgment of the Madras High Court and conclude the post.  

I. Law governing the Usage of the Indian National Flag-

The Constitution of India expressly mentions the National Flag once i.e., in Article 51-A wherein it imposes a Fundamental Duty on the citizens to inter alia abide by the Constitution and respect the National Flag. This duty is non-binding in nature. However, there are other articles of the Constitution that come into play when one attempts to use the national flag. One such key article is Article 19(1)(a), which guarantees to all citizens the right to freedom of speech and expression. The Courts have 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 (Union of India v. Naveen Jindal, (2004) 2 SCC 510).

It should be noted however, that rights under Article 19(1)(a) are not absolute and can be reasonably restricted by law under Clause 2 of the Article. One such restriction on the right has been placed through the Prevention of Insults to National Honour Act, 1971 (‘Act’) which regulates the manner in which the National Flag can be used and more importantly, the manner 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 3 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 i.e., ‘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. [Explanation 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. They 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-section 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)].

Interestingly, anchor and actress Mandira Bedi during the 2007 Cricket World Cup telecast wore a saree having images of the National Flags of participating countries. She was booked under this section since the image of the Indian National Flag was below her waist and near her legs (Mandira Bedi v. Pawan, 2010 SCC Online MP 615). Similarly, Chris Martin (the lead singer for Coldplay) had stirred a controversy during a concert in India, when he tucked the Indian National Flag in the back pocket of his jeans. 

• Embroidering the National Flag or printing it on cushions, handkerchiefs, napkins or undergarments or any dress material [sub-section e(ii)].
• Using the National Flag as a vessel to carry, receive or deliver anything except flower petals before being unfurled as part of celebrations on special occasions (sub-section g).
• Using the National Flag for covering a building, statue, monument, or a speaker’s desk platform (sub-section h and k).
• Intentionally displaying the National Flag with the saffron down (sub-section l).

It should be noted that the alleged act which disrespects the National Flag should be intentional. In other words, the accused should 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 (Explanation 1).

The Courts through their judgment have 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, could a prosecution under the Act succeed.  On the other hand, where the actions of an accused were a mere mistake lacking an intention to disrespect the National Flag, charges were dropped (The Publisher, Sport-star Magazine, Chennai v. Girish Sharma, 2000 SCC Online Mad 896).

For instance, in PV Joseph v. State of Kerala, the Court quashed charges against an individual who was accused of failing to lower the National Flag after the prescribed time, since there was no intention to disrespect the Flag. Similarly, in Kantilal Bhuria v. Sanjay Sarvaria, 2012 SCC Online MP 2621, the Court quashed a complaint against a sitting Cabinet Minister who was accused of sitting in a car having a mutilated National Flag.

The Ministry of Home Affairs, Government of India has also issued a Flag Code of India ’2002 (‘Code’), with the aim of regulating the usage of the National Flag. However, the Courts have consistently held that the Code is not ‘law’ for the purposes of restricting one’s rights under Article 19(1)(a). Therefore, the Code is a mere code of conduct, violation of which does not carry any penal consequences (Naveen Jindal’s case). In other words, a citizen is not criminally liable if s/he only violates the Flag Code and can only be booked for violating the Act.

II. The Madras High Court Judgment-

The Court in Inspector of Police v. D. Senthilkumar, was faced with an interesting complaint. In 2013, during a public function celebrating Christmas, a cake having the National Flag as the icing, was cut, distributed, and consumed by the guests. The complainant argued that the representation of the National Flag on the cake and cutting such a cake subsequently, violated Section 2 of the Act.

Based on the Complaint, the Magistrate had directed the police to register an FIR. This was challenged before the High Court by the police. The High Court allowed the appeal, stating that the test for Section 2 is the intention to disrespect the flag, which was missing in the present case. It observed,

‘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?’

More than the result, the Court’s observations from paragraph 54 onwards, are an absolute delight and one should read them to understand what patriotism truly means and more importantly what it should not mean. Justice Venkatesh titled this part of the judgment as ‘Compulsive Patriotism’ i.e., hyper and surfeit (excessive) adherence to patriotism. He observed that patriotism is not only raising the National Flag or wearing one’s national pride on her/his sleeve. Instead, it is batting for the nation’s good governance. He more importantly observed that symbolization of national pride is not synonymous with patriotism.

Concluding Remarks-

The Madras High Court’s judgment is extremely important especially at a time when governments of the day focus excessively on symbolism of national pride. For instance, recently the Delhi government has announced that it will spend considerable amount of public money towards installing the National Flag across Delhi. Delhi’s Finance Minister Shri Manish Sisodia cited the example of Delhi’s Connaught Place to observe, ‘the view of the large, 200 feet tricolour waving in the sky, fills our hearts and minds with nationalistic pride.’ Rather than indulging in symbolic patriotism, this money can be used towards beneficial causes and issues.

A proud Indian does not need a giant flag or other symbols, to remind or instil in her/him feelings of patriotism. This money if spent on vesting benefits on the citizens, would make them prouder of their nation and its government, as they prioritised taking actual care of their citizens rather than indulging in flamboyant acts of pseudo patriotism. Similarly, the state and its citizens should not indulge in compulsive patriotism by filing complaints as a matter of course without understanding the actual law. By unnecessarily harassing an innocent citizen of ‘India’, we disrespect the very nation whose honour we try to protect with the complaint.

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Views are personal. I do not wish to offend any member of the public with this post.