INTRODUCTION
Certain emblems and honors are affixed with a nation that embraces the feeling of Nationalism and Patriotism among its citizens. One of the foremost signs of allegiance to one’s nation is the National flag which is perceived to be cherished by every citizen of the country. In India, this evolution resulted from a great struggle for freedom which embraced our national sentiments into the National Flag. With time, the Legislature of the country also felt the need to protect the glory of these National emblems which is why it came up with various provisions and statutes to uphold the sovereignty and the integrity of a unified India.
The National Flag of India is not just a piece of fabric but is a prestige of our country which is achieved through the relentless sacrifices of our Freedom fighters in the National Struggle of our country. The Government of India through its ample provisions protects the fundamental aspect of the feeling of patriotism which is imbibed in every individual of the country. Earlier there were certain norms for the prevention of disrespect of National honors but in the present era a significant change has been brought through various laws in which punishments are laid down in case there are any dangers to the sanctity of these symbols. The Prevention of Insults to the National Honour Act, 1971[1], and The Emblems and Names (Prevention of Improper Use) Act, 1950[2] are the significant steps taken by the government in this regard. These acts are compiled to call what is named The Flag Code of India[3]. India has witnessed several instances where there was a shear violation of the sanctity of our National emblems. The Judiciary has played an active role in this regard as many precedents have been passed by the Hon’ble courts to protect these National Pride symbols from any sort of insult, disrespect, or dishonor.
The Judiciary through its various judgments has established that it is Intention that is to be taken in regard while assessing the act of contempt of our national symbols. The true test to assess patriotism is to determine the Intention in that regard, not the act. However, sometimes an act is a prima facie manifestation of the intention behind it. So, the act’s intention must be considered while assessing any act of dishonor against the National Flag of India. Any act of misconduct or negligence will not amount to an offense unless it is a malafide intention behind the whole scenario.
CONSTITUTIONAL PROVISIONS REGARDING THE PROTECTION OF NATIONAL HONOURS
Even the makers of the Constitution recognized the need to incorporate provisions regarding the protection and prevention of the symbols and emblems concerned with India’s prestige and pride. Article 51A[4] inflicts a duty upon its citizens to admire the sanctity of the national emblems and symbols. It provides that every citizen must adhere to the duty “to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”[5]. Another important provision of the Constitution of India is Article 19(1)(a)[6] which empowers all the citizens with the freedom of speech and expression. Right to Speech and Expression imbibes the Right to unfurl the Flag with an esteemed sense of patriotism and pride.
In the case of Union of India v. Naveen Jindal[7], a petition was filed by Naveen Jindal who was an MD of a Public Limited Company and was prohibited from flying National Flag. It was held by the court that the Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen with the meaning of Article 19 (1)(a)[8] of India being an Expression and Manifestation of his allegiance and feelings and sentiments of Pride for the Nation. The court also held that the Right to fly the National Flag is not limited to High Officials and Dignitaries. Article 14 mandates that every citizen is entitled to fly the National Flag irrespective of caste, color, creed, gender, or place of birth.
The Flag Code of India lays down the proper structure and measurements for the composition of the National Flag. It also lays down the provisions regarding the Hoisting, Display, and Use of the National Flag by the members of Public and private Organisations, and Educational Institutions. On the occasion of the 75th year of India’s Independence; the ‘Har Ghar Tiranga’ Campaign was launched to celebrate the Azadi ka Amrit Mahotsav; an amendment was made by the Ministry of Home Affairs in the Flag Code of India 2002[9] to allow the National Flag to be flown during the night as well. As an embodiment of true feelings of nationalism; Many Indians celebrated the festivity of Independence by unfurling the National Flag of India with honour and prestige and with a commitment to unified nation-building.
PENAL PROVISIONS FOR THE CONTEMPT OF NATIONAL HONOURS
The Prevention of Insults to the National Honour Act, 1971[10] provides sanctions for the person who commits an offense against the grandeur of the Indian National Flag. If a person commits an offense, he shall be punished for the same under the statutory laws. Section 2[11] provides that any person in any public place or in any other place which is within public view burns, mutilates, defaces, defiles, 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.
Presently, there have been a lot of incidences where the dignity of the National Flag was shackled through various acts. However the Hon’ble Courts after analyzing the situation affirmed that it is not the act but the intention behind the act which is the real indicator of the offence. Explanation 4 to Section 2 of The Prevention of Insults to the National Honour Act, 1971 elucidated the term ‘Disrespect to the Indian National Flag’ where it specifies the criteria that result in disrespecting the National Flag. Many judgements have been passed in that regard which conforms to the same opinions. In the case of Mandira Bedi v. Pawan[12], Mandira Bedi wore a saree that had pictures of the National Flags of the participating countries on it and this act made her liable under Section 2 of The Prevention of Insults to the National Honour Act, 1971.[13] In another case In Reference vs Prakash Kumar Thak[14], A complaint was filed under Section 2 of The Prevention of Insults to the National Honours Act 1971 against Sania Mirza on the allegation that she placed her feet on the table on which the National Flag was fixed in such a manner that she dishonored the sanctity of the National Flag.
It was evident from the various decisions established by the courts that the Intention behind the act is recognized as the sole criteria for adjudging the dishonor or disrespect of the National Embelms. In the landmark case of P.V. Joseph v State of Kerela,[15] it was laid down by the Kerela High Court that it would be useless to initiate proceedings against the accused if the accused doesn’t have the intention to disrespect the Flag. So, the Charges against the accused were quashed as there was no ill intention as the accused failed to dip the National Flag before the stipulated time. Similarly, In the case of Kantilal Bhuria vs. Sanjay Sarvaria[16]; the Madhya Pradesh High Court dropped the charges against the sitting Cabinet Minister who was accused of sitting in the car having mutilated the National Flag. In the case of Sarvadnya D. Patil and Anr. v State of Goa and Ors,[17] it was held by the Bombay High Court that there should be an intentional overt act to fall under Section 2 of The Prevention of Insults to National Honours Act, 1971.[18]
CONCLUSION
National Emblems and Honours are the solemn symbols of nationalism among the citizens. The Conscience of Every Indian binds him to believe in the sanctity of true patriotism. All three tiers of the government are working efficiently to maintain the integrity and unity of the nation. The Flag Code of India is one of the major steps taken by the Legislature to maintain respect for the National Flag. Article 51A[19], 1950 also binds every citizen to respect the national symbols and institutions.
Author(s) Name: Shivam Mittu (Guru Nanak Dev University, Regional Campus, Ladhewali, Jalandhar)
References:
[1] Prevention of Insults to the National Honour Act 1971
[2] Emblems and Names (Prevention of Improper Use) Act 1950
[3] Flag Code of India 2002
[4] Constitution of India 1950, Art 51A
[6] The Constitution of India 1950, art 19(1)(a)
[7] Union of India v Naveen Jindal AIR 2004 SC 1559
[8] Constitution of India 1950, Art 19(1)(a)
[9] Flag Code of India 2002
[10] Prevention of Insults to the National Honour Act 1971
[11] Prevention of Insults to the National Honour Act 1971, s 2
[12] Mandira Bedi v Pawan M Crl Case No 2121/2008
[13] Prevention of Insults to the National Honour Act 1971, s 2
[14] In Reference v Prakash Kumar Thakur ILR (2008) MP 591
[15] P.V. Joseph v State of Kerala Crl M Case No 8035/2015
[16] Kantilal Bhuria v Sanjay Sarvaria M Crl Case No 12496/2011
[17] Sarvadnya D. Patil and Anr v State of Goa and Ors WP No 50/2001
[18] Prevention of Insults to the National Honour Act 1971, s 2
[19] Constitution of India 1950, Art 51-A
