Table of Contents
According to our Indian Constitution, “The Indian National flag represents the hopes and aspirations of the people of India”. It is expressly provided under Article 51-A of the Indian Constitution. There is a duty imposed on citizens, which is non-binding, to abide by the Constitution and respect the National Flag and the National Anthem. Another article related to the use and display of the national flag is Article 19 (1) (a), which guarantees the right to freedom of speech and expression to all citizens. In the case of Union of India vs Naveen Jindal, (2004) 2 SCC 510, the Hon’ble Apex Court has observed that the right to freedom and expression provide under Article 19 (1) (a) 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.
It must also be noted that these rights, as mentioned above, are not absolute and have certain reasonable restrictions on them, which is provided under Article 19 (2).This law includes the freedom to fly the National Flag, as the Hon’ble Supreme Court has held (Union of India vs Naveen Jindal, (2004) 2 SCC 510) to show and demonstrate one’s loyalty and emotions of pride.
The Prevention of Insults to National Honour Act, 1971, also restricts the right as mentioned above. The legislation was enacted to curb incidents of disrespect to the National Flag. The insulting of the National Flag is considered a punishable offence under Section 2 of the Act, and this offence is punishable up to three years, or fine, or both. The Ministry of Home Affairs (MHA) has also issued an advisory to all the State/Union Territory governments to create awareness regarding the rules governing the display of the National Flag. There is also another legislation to promote awareness about the National Flag, its display and its protection, the Flag Code of India, 2002. The display of the National Flag is governed by the Act as mentioned above.
Early Rules Governing the Display of Tricolour
The Emblems and Names (Prevention of Improper Use) Act, 1950
This Act was mainly passed to prevent the improper use of certain emblems and names for professional and commercial purposes. Section 3 of the Act provides prohibition of improper use of certain emblems and names. The punishment for the contravention of Section 3 is provided under Section 5, which is acceptable which may extend to five hundred rupees. There are a total of nine sections in the Act. Under Section 9 of the Act, the power of the Central Government to make rules to carry out the purposes of the Act is provided.
The Prevention of Insults to National Honour Act, 1971
This Act of the Parliament prohibited the desecration of or insulted to the country’s national symbols, including the National Flag, the National Anthem, the Constitution and the map of India, as well as the contempt of Indian Constitution. The term disrespect to the Indian National Flag means and includes various aspects such as an indignity offered to the Indian National Flag, waving the Indian National Flag at half-mast except on specific occasions in accordance with the instructions issued by the Government.
Under Section 2 ‘The Prevention of Insults to National Honor Act, 1971,’ – Anyone who disrespects or otherwise disrespects or dislikes (whether by words, spoken or written, or by deeds) the Indian National Flag or any part of the flag shall be punished up to three years of imprisonment or with fine, or with both.
The Flag Code, 2002
This Code is an attempt to amalgamate all the previous laws related tothe flag, conventions, practices, and instructions for protecting the national flag. The Flag Code was primarily created in 1968 and is a set of standards governing the use of the Indian flag in different contexts.It was modified again in 2002 and 2008. The Flag Code was integrated with the Emblems and Names (Prevention of Improper Use) Act, 1950, and the Prevention of Insults to National Honour (Amendment) Act, 2005, in 2002.
- Part I of the Flag Code
Part I of the Flag Code describes and specifies the proportions of a standard flag.
The Indian Tricolor Flag, for example, is composed of three rectangular bands: saffron on the top, white in the middle, and green on the bottom. The flag’s length-to-height ratio is 3:2; the Ashok Chakra, which is dark blue in colour in the central cotton band, has 24 spokes. Handspun cotton, silk, or khadi are used to make a standard flag.
- Part II of the Flag Code
The next part of the Flag Code of India addresses the proper display code and instructions for storing and disposing of the flag in a civilian environment.
The Indian national flag should always be displayed prominently in every circumstance. When flying above public buildings, the national flag shall be flown from dawn to sunset. The flag should always be hoisted quickly and lowered carefully. The saffron band must always be presented as the topmost band or the right (of the flag) band (in the vertical display case). It is illegal to display the flag reversed (saffron side down). Displaying a damaged or untidy flag is also prohibited. The national flag should never be dipped.
The Indian national flag should not be used as a festoon or decoration, nor should it be permitted to touch the ground. It is not to be used as advertising, clothing, or wrap. It may not be ripped, destroyed, burned, or otherwise mistreated. A flag should be disposed of in its whole, in secret, and ideally by fire. It is also illegal to draw or deface the flag with any kind of writing or graffiti.
The Prevention of Insults to National Honour Act, 1971 (modified in 2003) establishes the penalties for flag insults. The first offence is punishable by up to 3 years in jail and a fine. Subsequent offences will result in at least a year in jail.
- Part III of the Indian Flag Code
The proper display of the Flag, storage and guidelines related tothe disposal of the flag is provided under Section III of the Flag Code of India. The guidelines mentioned above are provided in a defence context, except in the case of defence installations regulated by their code of flag display. These guidelines have similarities with the display guidelines of Section II.
- In some instances or in unusual circumstances where a funeral is being held, flags may be used to cover the ceremony. However, they must be removed before they are cremated by the staff or members of the state or central paramilitary forces.
- The Indian Flag should be placed on the far right of the row (left of the crowd) or at the beginning of the circle.
- All the folks present at or in the flag hoisted event shall be expected to face the flag and be aware as long as the individuals in a uniform are aware of it.
National Flag at Half Mast
Everywhere throughout India, the Indian National Flag is flown at half-mast as a sign of national sorrow when a President, Vice-President, or Prime Minister dies. If a governor, Lt. Governor, Chief Minister dies, the national flag passes halfway across the state or the territory of the Union. Before lowering it to half-mast, the flag is lifted to the top of the mast.
The Madras High Court Judgment
In the current matter of the Police Inspector against D. Senthilkumar, Cr. O.P. No. 15656 of 2020, the Madras High Court was confronted with an unexpected complaint. During a public Christmas celebration in 2013, participants sliced, distributed, and consumed a cake with the national flag as a glaze. In 2013, the complainant claimed that Section 2 of the Act was violated when the national flag was displayed and the cake was sliced.
The Magistrate asked the police to file an FIR based on the complaint. The police challenged this in the High Court. The High Court recognized that the requirement for Article 2, which is absent in the current instance, is the purpose to disregard the flag. It noted:
“A heinous bodily act does not define patriotism. The ultimate test will be the intention behind the act, and the act itself may occasionally reflect the goal behind it. Even if the full set of circumstances described in the complaint are regarded as they are, it must be seen what the genuine emotion with which the participants would have dispersed once the activity was ended would have been in the present situation.”
Symbolic Patriotism is Disrespectful to the Nation
When the governments appear to focus on symbolizing national pride, the Madras High Court’s decision is of current significance.
For example, the Government of Delhi has stated that it will invest substantial public funds installing the Delhi National Flag. Delhi Minister of Finance Manish Sisodia highlighted Delhi’s example of Connaught Square to point out that “the vision of the 200 feet wide, tricoloured wave in heaven is full with a nationalistic fierce pride for our heart and intellect.” This money could not be utilized for causes and concerns that assist citizens materially, rather than to indulge in symbolic patriotism.
To recall or inculcate on their feeling of patriotism a proud Indian does not require a huge flag or other symbol. This money would make people proud of their nation and its governmentmajority above symbolic pseudo-patriotism if used to provide advantages to their residents.
Likewise, without comprehending the true legislation, the State and its people should not allow such fake patriotism in submitting natural grievances. We dishonour the very nation whose honour we attempt and preserve with the complaint by unnecessarily harassing an innocent individual.
The prosecution under the Act for disrespecting the National Flag can succeed only in cases where there is an intention to disrespect the National Flag and in cases where mala fides were established. There are cases, for instance, in The Publisher, Sport-star Magazine, Chennai vs Girish Sharma, 2001 CriLJ 1863, where the intention was lacking to disrespect the National Flag; the Madras High Court dropped the charges against the accused. To remember or inspire patriotism, a proud Indian does not need to have a big flag or other symbols.
This Article is authored by Akanksha Pandey, student at Law College Dehradun, Uttaranchal University.