15656 of 2020

1 Crl.O.P.No.15656 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on
15.03.2021
Delivered on
22.03.2021
CORAM:
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.OP No.15656 of 2020
and
Crl.MP.No.5974 of 2020
State Rep.by
The Inspector of Police,
B 12 Police Station,
Coimbatore. ..Petitioner
.Vs.
D.Senthilkumar
S/o.Dhakshana Moorthy,
Hindu Public Party's State News Connector,
98A, Sivaji Colony Bus Stop,
Vishnupriya Hospital Opposite,
Velandipalayam (P.O),
Coimbatore 641 025. ..Respondent
PRAYER : Criminal Original Petition is filed under Section 482 of
the Code of Criminal Procedure, to call for the records in
C.M.P.No.6452/2015, pending on the file of the Judicial Magistrate
V, Coimbatore culminating in the order dt.17.12.2017 and quash
1/52
http://www.judis.nic.in

2 Crl.O.P.No.15656 of 2020
the entire proceedings in C.M.P.No.6452/2015, pending on the file
of the Judicial Magistrate V, Coimbatore culminating in the order
dt.17.12.2017.
For Petitioner : Tr. Emilias
Additional Advocate General
Asst by:
Ms.P.Kritika Kamal
Government Advocate (crl.side)
For Respondent : Mr.D.Senthil Kumar
Party in Person
ORDER
The Flag Code of India 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
Respondent in this case, on coming to know about a function
conducted at Coimbatore and the manner in which the Indian
National Flag was portrayed in that function, felt that the
participants have deliberately disrespected the National Flag, which
2/52

3 Crl.O.P.No.15656 of 2020
resulted in a criminal complaint, and the consequent orders passed
therein which is the subject matter of challenge in the present
Criminal Original Petition.
2.The crux of the complaint was that, on 25.12.2013,
at a public function celebrating the Christmas festival, a cake
measuring 6 ft. length and 5 ft. breadth, the icing on which carried
a tri-colour Indian map outline with the Ashoka Chakra in the
centre, was cut, distributed and consumed by the Special Guests
and about 2500 participants including 1000 children who attended
the celebration. According to the complainant, the said function
was attended by the District Collector of Coimbatore, The Deputy
Commissioner of Police, and various other religious leaders and
members representing a number of Non-Governmental
Organisations. The grievance of the complainant was that the
representation of the Indian National Flag on the cake and the
cutting of the same amounts to an offence under Section 2 of The
Prevention of Insults to National Honour Act, 1971 (hereinafter
referred to as “the Act”).
3/52

4 Crl.O.P.No.15656 of 2020
3.The Respondent became aware of the Christmas
function on 26.12.2013 after it was reported in all the newspapers.
The Respondent strongly felt that the participants had insulted the
National Flag, and hence, he gave a complaint to the B-12 Police
Station, Coimbatore, on 30.12.2013. According to the Respondent,
the police refused to entertain this complaint. Aggrieved by the
same, the Respondent filed a petition under Section 156(3) of The
Code of Criminal Procedure, 1973 (hereinafter referred to as
“Cr.P.C.”) before the learned Judicial Magistrate- V, Coimbatore to
direct the police to register an FIR and file a Final Report.
4.The learned Magistrate decided to deal with the
petition as a complaint under Chapter XV, Cr.P.C., and the same is
clear from the proceedings of the court dt. 19.03.2014. The
learned Magistrate took cognisance of the complaint under Section
190(1)(a), Cr.P.C. and recorded the sworn statement of the
Respondent on 02.11.2015. That apart, the learned Magistrate
also recorded the sworn statements of two more witnesses on
4/52

5 Crl.O.P.No.15656 of 2020
10.03.2016 and 02.04.2016, respectively.
5. The learned Magistrate thereafter exercised the
jurisdiction under Section 156(3), Cr.P.C. and passed an order on
17.02.2017, directing the police to register an FIR against the
concerned persons for an offence under Section 2 of the Act, to
inquire the same and to file a Final Report.
6.The State has filed the Criminal Original Petition
under Section 482, Cr.P.C. challenging the Order passed by the
learned Magistrate on 17.02.2017. The Respondent has filed the
Writ Petition to direct the police to comply with the orders passed
by the learned Magistrate.
7.Mr. C. Emilias, learned Additional Advocate General
(hereinafter referred to as “the AAG”) appearing on behalf of the
State made the following submissions:
● Even if the allegations made in the complaint are
taken as it is, it does not make out an offence under
5/52

6 Crl.O.P.No.15656 of 2020
Section 2 of the Act.
● The complaint was based only on paper reports,
and the complainant did not have any personal
knowledge about the function that was held on
25.12.2013.
● The complainant initially filed a petition under
Section 156(3), Cr.P.C., and it was entertained by
the court below even without a supporting affidavit
and hence it is in violation of the mandate
prescribed by the Hon’ble Supreme Court in
Priyanka Srivatsava v. State of U.P. reported in 2015
(6) SCC 287.
● The court below, after having taken cognisance of
the complaint and proceeding to deal with the same
under Chapter XV, Cr.P.C. cannot resort to the
powers under Section 156(3), Cr.P.C. To
substantiate his submissions, the learned AAG relied
upon the judgement of the Hon’ble Supreme Court
in Madhao v. State of Maharashtra reported in
6/52

7 Crl.O.P.No.15656 of 2020
(2013) 5 SCC 615. The learned AAG also relied upon
the judgement of this Court in M. Hamsaveni v. R.
Loganathan reported in (2019) 5 CTC 518.
● The Collector of Coimbatore District and the Deputy
Commissioner of Police are public servants who
attended the function in that capacity, and hence
the learned Magistrate should not have passed an
order under Section 156(3), Cr.P.C. without
sanction under Section 197, Cr.P.C. To substantiate
this submission, the learned AAG relied upon the
judgement of the Hon’ble Supreme Court in Anil
Kumar v. Ayyappa reported in (2013) 10 SCC 705.
8. The complainant appeared in person and made the
following submissions:
● The function was not conducted for any communal
harmony or for depicting national integration, and it
was only a Christmas celebration.
● The tri-colour Indian flag should not have been
7/52

8 Crl.O.P.No.15656 of 2020
depicted on the cake, and cutting such a cake will
certainly result in insult to the National Flag.
● The complainant specifically placed reliance upon
Explanation 2 to Section 2 of the Act and submitted
that the cake in the form of the Indian map in tri-
colour would come within the phrase “made of any
substance or represented on any substance”.
● The learned Magistrate has applied his mind and
passed an order directing the police to register an FIR,
and therefore, the police must register the FIR and
investigate this case and save the honour of the
National Flag.
9. This Court has carefully considered the submissions
made on either side and the materials available on record.
10.This Court wants to deal with this case broadly
under two heads:
a) Whether the procedure adopted by the
learned Magistrate is in accordance with Cr.P.C.
and the same is sustainable in law; and
8/52

9 Crl.O.P.No.15656 of 2020
b) Whether the complaint makes out an
offence under Section 2 of the Act.
11.There is no serious dispute on the facts of the
present case. Therefore, this Court will straight away focus on the
issues that are taken up for consideration.
12.The learned Magistrate had initially taken a decision
to deal with the Petition as a complaint. The same is clear from
the proceedings of the Magistrate dt. 17.02.2017. The Magistrate,
on going through the allegations made in the complaint, decided
to take cognisance under Section 190(1)(a), Cr.P.C. Thereafter,
the learned Magistrate proceeded to examine the complainant and
two witnesses on oath as per Section 200, Cr.P.C. Having resorted
to this procedure, the learned Magistrate ought to have proceeded
further and either rejected the complaint under Section 203,
Cr.P.C. or issued process to the accused persons under Section
204, Cr.P.C. Instead, the learned Magistrate reverted back to
9/52

10 Crl.O.P.No.15656 of 2020
Section 156(3), Cr.P.C. and directed the police to register an FIR,
investigate and file a Final Report.
13.The procedure followed by the learned Magistrate is
patently illegal. Power to direct investigation under Section 156(3),
Cr.P.C. is done at the pre-cognisance stage. Therefore, once the
Magistrate decides to take cognisance and embarks upon the
procedure stipulated under Chapter XV, Cr.P.C., he cannot revert
back to the pre-cognisance stage and pass orders under Section
156(3), Cr.P.C.
14.The learned Magistrate failed to take note of a
fundamental flaw that was committed while exercising the
jurisdiction. If an order is passed under Section 156(3), Cr.P.C.,
and it translates itself into an FIR, the investigation will ultimately
result in a Final Report under Section 173(2), Cr.P.C. Once such a
report is filed, the learned Magistrate has to take cognisance of
the same under Section 190(1)(b), Cr.P.C. If that is allowed in the
present case, the learned Magistrate will be taking cognisance of
10/52

11 Crl.O.P.No.15656 of 2020
the same case for the second time. The first time the cognisance
has already been taken under Section 190(1)(a), Cr.P.C. and the
second time, the Magistrate will be taking cognisance after the
Final Report under Section 190(1)(b), Cr.P.C. This will result in a
complete violation of the procedure adumbrated under the Cr.P.C.
15.The judgments cited by the learned AAG will
squarely apply to the facts of the present case, and the Order
passed by the learned Magistrate under Section 156(3) of Cr.P.C.
is liable to be interfered with by this Court on this ground alone.
The first issue is answered accordingly.
16.Under normal circumstances, where a Court finds
patent illegality in the procedure adopted by a subordinate court,
and the same is set aside on that ground, this Court will not
venture into deciding the merits of the case. However, since the
complainant has raised an issue on insult to the National Flag and
some clarity is required to deal with similar situations that may
arise in future, this Court proceeds to deal with the second issue
11/52

12 Crl.O.P.No.15656 of 2020
also and render its findings on the same.
17. In the present case, the complainant does not
have personal knowledge about the event that was conducted on
25.12.2013. The only source of information for the complainant
was the newspaper reports relied upon by him. Even the witnesses
examined by the learned Magistrate were persons who were
accidentally present at the venue and that too after the cake was
cut, and they had their share of the cake. It is, therefore, clear
that the complaint did not emanate from a person who had
witnessed the incident. This function was attended by the District
Collector, Deputy Commissioner of Police and other notable
dignitaries, and this function is said to have been conducted to
propagate national integration and communal harmony.
Admittedly, in the event, there were 2500 participants, out of
which 1000 were children. When such is the importance of the
event, Courts should satisfy itself on the correctness or the nature
of the information provided by the complainant. The Hon’ble
Supreme Court, on more than one occasion, has held that the
12/52

13 Crl.O.P.No.15656 of 2020
publication made in a newspaper or a journal or a magazine
should not be taken as gospel truth, and the Court has to
necessarily look for materials to corroborate the authenticity and
credibility of the information published in the newspaper. Useful
reference can be made to the judgement of the Hon’ble Supreme
Court in Dr. B. Singh v. Union of India reported in 2004 (3) SCC 36.
18.This Court does not want to enter into the
controversy on the issue of sanction raised by the learned AAG
since this issue has already been referred to a larger bench by the
Hon’ble Supreme Court in Manju Surana v. Sunil Arora reported in
(2018) 5 SCC 557. Even otherwise, this issue will become relevant
only if this Court is convinced that the facts stated in the
complaint make out an offence under Section 2 of the Act.
19. This Court will deal with the second issue that has
been taken up for consideration under the following heads:
1. The historical significance of the National Flag of
India and the Constituent Assembly Debates;
2. Constitution of India, 1950 and the Act;
13/52

14 Crl.O.P.No.15656 of 2020
3. Provisions of the Flag Code of India, 2002; and
4. Essential Ingredients to attract an offence under
Section 2 of the Act; and
4.1. Importance of Mens Rea in a case of this
nature;
4.2. Interpretation of Insult; and
4.3. Interpretations rendered by various High
Courts on the purport of Section 2 of the
Act.
5. Compulsive Patriotism and its Fetishization.
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)
20.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
14/52

15 Crl.O.P.No.15656 of 2020
proportion was adopted as the National Flag of India.
21.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. Nevertheless, sometimes in a brief period we pass
through the track of centuries. It is not so much the mere act
of living that counts but what one does in this brief life that is
ours; it is not so much the mere existence of a nation that
counts but what that nation does during the various periods
of its existence; and I do venture to claim that in the past
quarter of a century or so India has lived and acted in a
concentrated way and the emotions which have filled the
people of India represent not merely a brief spell of years but
something infinitely more. They have gone down into history
and tradition and have added themselves on to that vast
history and tradition which is our heritage in this country. So,
when I move this Resolution, I think of this concentrated
history through which all of us have passed during the last
15/52

16 Crl.O.P.No.15656 of 2020
quarter of a century. Memories crowd upon me. I remember
the ups and downs of the great struggle for freedom of this
great nation. I remember and many in this House will
remember how we looked up to this Flag not only with pride
and enthusiasm but with a tingling in our veins; also how;
when we were sometimes down and out, then again the sight
of this Flag gave us courage to go on. Then, many who are
not present here today, many of our comrades who have
passed, held on to this Flag, some amongst them even unto
death and handed it over as they sank, to others to hold it
aloft. So, in this simple form of words, there is much more
than will be clear on the surface. There is the struggle of the
people for freedom with all its ups and downs and trials and
disasters and there is, finally today as I move this Resolution,
a certain triumph about it--a measure of triumph in the
conclusion of that struggle.”.
… 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.”
16/52

17 Crl.O.P.No.15656 of 2020
22.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.”
23.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.”
24.Dr. Joseph Alban D’Souza prayed, “Vivat,
Crescat, Floreat India”, “May India under the aegis of this Flag
live, grow and flourish”.
25.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.”
17/52

18 Crl.O.P.No.15656 of 2020
26.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.”
27.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.
18/52

19 Crl.O.P.No.15656 of 2020
28.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 Act
29.Article 19(1)(a) of the Constitution (hereinafter
referred to as “the Constitution”) 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) 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.’
19/52

20 Crl.O.P.No.15656 of 2020
30.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.’
31.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’.
32.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
20/52

21 Crl.O.P.No.15656 of 2020
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.’
33.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.”
21/52

22 Crl.O.P.No.15656 of 2020
34. 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.
35.The provision is extracted hereunder:
2. Insults to Indian National Flag and Constitution of
India.—Whoever in any public place or in any other place
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.
22/52

23 Crl.O.P.No.15656 of 2020
Explanation 1.—Comments expressing disapprobation or
criticism of the Constitution or of the Indian National Flag or
of any measures of the Government with a view to obtain an
amendment of the Constitution of India or an alteration of the
Indian National Flag by lawful means do not constitute an
offence under this section.
Explanation 2.—The expression “Indian National Flag”
includes any picture, painting, drawing or photograph, or
other visible representation of the Indian National Flag, or of
any part or parts thereof, made of any substance or
represented on any substance.
Explanation 3.—The expression “public place” means any
place intended for use by, or accessible to, the public and
Includes any public conveyance.
[Explanation 4.—The disrespect to the Indian National Flag
means and includes—
(a) a gross affront or indignity offered to the Indian National
Flag; or
(b) dipping the Indian National Flag in salute to any person
or thing; or
(c) flying the Indian National Flag at half-mast except on
occasions on which the Indian National Flag is flown at half-
mast on public buildings in accordance with the instructions
issued by the Government; or
(d) using the Indian National Flag as a drapery in any form
whatsoever except in State funerals or armed forces or other
para-military forces funerals; or
23/52

24 Crl.O.P.No.15656 of 2020
[(e) using the Indian National Flag,—
(i) as a portion of costume, uniform or accessory of any
description which is worn below the waist of any person; or
(ii) by embroidering or printing it on cushions, handkerchiefs,
napkins, undergarments or any dress material; or]
(f) putting any kind of inscription upon the Indian National
Flag; or
(g) using the Indian National Flag as a receptacle for
receiving, delivering or carrying anything except flower
petals before the Indian National Flag is unfurled as part of
celebrations on special occasions including the Republic Day
or the Independence day; or
(h) using the Indian National Flag as covering for a statute
or a monument or a speaker’s desk or a speaker’s platform;
or
(i) allowing the Indian National Flag to touch the ground or
the floor or trail in water intentionally; or
(j) draping the Indian National Flag over the hood, top and
sides or back or on a vehicle, train, boat or an aircraft or any
other similar object; or
(k) using the Indian National Flag as a covering for a
building; or
(l) intentionally displaying the Indian National Flag with the
“saffron” down.]
36.Subsequently, the Flag Code of India, 2002
(hereinafter referred to as “the Code”) was brought into force as
24/52

25 Crl.O.P.No.15656 of 2020
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.
37.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.”
38.The Code, however, does not have the force of a
statute and is not ‘law’ under Article 13(3)(1) of the Constitution
as held by the Hon’ble Supreme Court in Union of India v. Naveen
Jindal, reported in 2004 (2) SCC 510. It contains a set of procedures
and parameters to be followed while using the Flag.
25/52

26 Crl.O.P.No.15656 of 2020
39.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 under Article 19 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
40. Unlike the 1971 Act, the Flag Code of India 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)
26/52

27 Crl.O.P.No.15656 of 2020
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
27/52

28 Crl.O.P.No.15656 of 2020
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 Act.
41. 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.
42. The High Court of Bombay in Amgonda Vithoba
Bandhare v. Union of India, reported in 2012 (4) Mh.L.J 768 held
28/52

29 Crl.O.P.No.15656 of 2020
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
29/52

30 Crl.O.P.No.15656 of 2020
the instructions which are given in the Flag Code would
amount to an offence which is punishable under Section 2 of
the said Act.”
43. Relying on Amgonda (cited supra), the Bombay
High Court held the following in the case of Dr. Varsha w/o Raj
Salunke v. State of Maharashtra, reported in 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
30/52

31 Crl.O.P.No.15656 of 2020
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.”
Importance of Mens Rea in a case of this nature
44. 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 Act.
45. At this juncture, it is pertinent to take into account
the judgement of the High Court of Madhya Pradesh in Ganesh Lal
Bathru v. State of MP, reported in 2002 SCC OnLine MP 599, where
the Court interpreted “otherwise beings into contempt” as:
“6. From a perusal of the relevant provisions of the
31/52

32 Crl.O.P.No.15656 of 2020
Act so also the Code and on a careful scrutiny of materials on
record, it is clear that there is a dearth of materials to show
an intention or mens rea to disrespect the national Flag and
thereby to undermine the sovereignty of nation. The applicant
was working as the Principal of a Government High School
and being the incharge could hoist the Flag but since the
complainant was authorised to do so, the applicant could not
have played any mischief, unless there is a positive material
to the contrary, in tying the Flag in reverse Order through a
lower staff to show down the complainant….
… In addition to that, the inclusive clause of section 2 ‘or
otherwise brings into contempt’ cannot be stretched that far
as to include acts in question which are absolutely devoid of
elements of mens rea or disrespect and thus fall outside the
definition of contempt as given in Black’s Dictionary.”
46. In the case of Tamizhazhagan and Anr. v. The
Revenue Divisional Officer reported in (1966) 2 MLJ 194, this Court
while dealing with the validity of Prevention of Insults to National
Honour Act, 1957 and Section 5 of the said Act, summarised the
meaning of patriotism, and the intention of the legislature behind
the impugned statute, held as follows:
32/52

33 Crl.O.P.No.15656 of 2020
“18. Patriotism and loyalty to the Constitution are matters of
feeling and conduct with the human spirit. They are capable of
drawing out of man the highest of his noble qualities and supreme
sacrifice. They belong to the category of feelings which, at any rate
at the present stage of society and world order, man regards as of
paramount importance. From such belief flows sentiments of great
regard and veneration to objects which symbolise such feelings. The
Constitution of India which the people of India have given
themselves, symbolises the realisation of their cherished dreams
after decades of unparalleled sacrifice, and it is but natural to
expect any citizen of India to regard with veneration any document
that embodies the Constitution. True, the Constitution can be
amended and has been amended several times, but the Constitution
is an organic instrument and carries within it the power to get itself
amended. To the instrument as it stands he pays his deepest
homage. It symbolises to him his hard-won sovereignty; it contains
his charter of rights.
19. It is quite a common feature to be observed that people
in this country, at least large sections, look with veneration upon
any parchment, paper, palm leaf, or slate, which records any
writing, as manifestations of Goddess Saraswathi. If, in such
circumstances, the State should think it necessary to declare the
wilful burning of any article embodying the Constitution or part of
it, an offence, the State is only discharging its duty, and reflecting
the sentiments of large sections of the Indian public, it is only
making punishable an act which may otherwise go unpunished,
though it might have offended the sentiments of large sections of the
community, and deeply wounded their feelings. It will be a case of
33/52

34 Crl.O.P.No.15656 of 2020
mala in se, that is, an offence against nature or contrary to the
moral sense of the community, and not a mere mala prohibitat that
is, an offence against laws which enjoin positive duties and forbid
things which are not mala in se, to which is annexed a penalty for
non-compliance.
20.Here we would like to quote the observations of the
Supreme Court in Veerabadran Chettiar v. Ramaswami Naicker.
The decision impliedly recognise the duty of the State to protect the
sentiments and susceptibilities of its different groups of citizens.
That was a case of religious susceptibilities. The question in that
case was whether the breaking in public of an unconsecrated clay
idol of God Ganesa held sacred by a large section of Hindus with
the express intention of insulting the feelings, of the Hindu
community would be an offence under Section 295, Indian Penal
Code. The Indian Penal Code had used the words “any object held
sacred by any class of persons.” Differing from this Court and
holding that idols are only illustrative of those words and the
objects destroyed need not be consecrated ones, Sinha, J.,
delivering the judgment of the Supreme Court, remarks at page
1035:
A sacred book like the Bible, or the Koran, or the Granth Saheb, is
clearly within the ambit of these general words. If the Courts below
were right in their interpretation of the crucial words in Section
295, the burning or otherwise destroying or defiling such sacred
books will not come within the purview of the penal statute. In our
opinion, placing such a restricted interpretation on the words, of
such general import, is against all established canons of
construction. Any object, however trivial or destitute of real value in
34/52

35 Crl.O.P.No.15656 of 2020
itself, if regarded as sacred by any class of persons, would come
within the meaning of the penal section. Nor is it absolutely
necessary that the object, in order to be held sacred, should have
been actually worshipped. An object may be held sacred by a class
of persons without being worshipped by them. It is clear, therefore,
that the Courts below were rather cynical in so lightly brushing
aside the religious susceptibilities of that class of persons to which
the complainant claims to belong. The section has been intended to
respect the religious susceptibilities of persons of different religious
persuasions or creeds. Courts have got to be very circumspect in
such matters, and to pay due-regard to the feelings and religious
emotions of different classes of persons with different beliefs,
irrespective of the consideration whether or not they share these
beliefs or whether they are rational or otherwise, in the opinion of
the Court.
35. Now, the impugned legislation penalises only wilfully
burning of any copy or a copy of a part of the Constitution of India,
and the word ‘wilfully’ is of considerable import in the context of its
user. It is not every burning of a copy of the Constitution that is
made an offence. Wilfully’ there, is not just the equivalent of
knowingly or intentionally. It is something more. It is burning the
Constitution purposely, the purpose getting apparent from the two
succeeding words ‘desecrates’ or ‘insults’ and as revealed by the
Short Title to the Act and the Preamble. ‘Wilfully’, as we see it,
denotes an evil intention and it is found in Stroud’s Judicial
Dictionary, 3rd Edition, Volume 4, at page 3305, that such is the
common use of the word in the English language. ‘Wilfully’ in the
context does not mean merely intentionally as opposed to
35/52

36 Crl.O.P.No.15656 of 2020
accidentally which meaning it sometimes has.
In The Queen v. Senior, wilfully’ is stated to mean that “the act is
done deliberately and intentionally, not by accident or inadvertence,
but so that the mind of the person who does the act goes with it”.
The paper embodying the Constitution must be burned as
embodying the Constitution; there must be deliberation to burn a
copy or part of the Constitution with the intention of desecrating or
insulting. No doubt if the words’ wilfully burns’ stand by
themselves, it may take in an innocent burning of the paper
containing the Constitution. But the words take their colour from
the context. The enactment is not made in vacuo. The circumstances
in which the Act came to be passed, the object and purpose of the
Act as revealed in the Preamble and the other parts of the Act
provide the key to the understanding of the language and place a
limitation on the words’ wilfully burns’.”
Interpretation of the term ‘Insult’
47. In Tamizhazhagan (cited supra), this Court while
interpreting the terms’ insult’ and ‘desecration’, after delving into
the principles of interpretation in construing general language
used by the legislature in an enactment, held as extracted
hereunder:
“36. In Craies on Statute Law, 6th Edition, at page 177, the
principles of interpretation in such circumstances as gathered from
the case-law are set out thus: From Cox v. Hakes (2), the following
statement is extracted:
36/52

37 Crl.O.P.No.15656 of 2020
“It cannot, I think, be denied that, for the purpose of
construing any enactment, it is right to look, not only at the
provision immediately under construction, but at any others found
in connection with it which may throw light upon it, and afford an
indication that general words employed in it were not intended to be
applied without some limitation. General words therefore must be
understood as used with reference to the subject-matter in the mind
of the Legislature and limited to it.”
We are on a penal statute and when interpretation of the statute
becomes necessary, it should lean towards preserving the liberty of
the subject. That the word ‘burns’ in S. 5 of the Act can only refer
to burning with an intention of desecrating or insulting in the
context of its user, will be apparent from the following illustration
given in Maxwell on Interpretation of Statutes, 11th Edition, at page
324:
“On the same principle, an Act which prohibited the ‘taking or
destroying’ of the a pawn or fish would not include a ‘taking’ of
spawn to remove it to another bed, for the word ‘destroying’ with
which ‘taking’ was associated, indicated that the taking which was
prohibited was dishonest or mischievous.”
It is an established principle of interpretation of statute that if very
general language is used in an enactment, which it is clear must
have been intended to have some limitation put upon it, the
Preamble may be used to indicate to what particular instances the
enactment is intended to apply—see Craies on Statute Law, 6th
Edition, at page 203. If need be, we would read the conjunction ‘or’
before ‘insults’ in S. 5 as ‘and’, that the section may read:
“Whoever wilfully burns or desecrates and insults”. Vide Maxwell
on Interpretation of Statutes, 11th Edition, at page 230 for an
37/52

38 Crl.O.P.No.15656 of 2020
illustration where an absurd consequence was avoided and the real
intention of the Legislature which was beyond reasonable doubt was
effected by reading ‘or’ as ‘and’.”
The court went on to note the meaning of the terms’ insult’ and
‘desecrate’,
“37. In Frank and Wagnalls’ New Standard Dictionary’
insult’ is explained thus: “To treat with gross indignity, insolence
or contempt, by word or act; officer an indignity or affront to;”
‘Desecrate’ is defined in the Dictionary as “divert from sacred to a
common use; give up to sacrilege; profane, as to desecrate a shrine
or holy vessels”.
Further, it held,
“38. Learned Counsel contends that even if a person burns
a copy of the Constitution in the fastness of his own house, he could
be held guilty under the section, and the wide sweep of the
enactment beyond the needs makes the Act unconstitutional. We do
not construe the Act like that. The gist of the offence is insult and if
insult is to be effective, it has to be conveyed. The law does not take
note of uncommunicated or unexhibited ideas or thoughts or
feelings. In the Law Lexicon of India, Ramanatha Iyer Edition, page
603,
‘Insult’ is explained as being ‘active’ like outrage. The language is
‘whoever insults’, not ‘whoever thinks he insults’: insult cannot be
38/52

39 Crl.O.P.No.15656 of 2020
taken by a copy of the constitution: it will hurt the millions who pay
homage to the Constitution. The burning that is banned is not one
intended for absorption of stone walls or for edification of stoic
philosopher-spectators. It is a burning that one may expect would
provoke and offend those hostile to the idea, while exciting the
friendly and sympathetic to extremes of demonstration, with
likelihood of violent clashes between the two.
59. On ultimate analysis the position resolves to this:
whenever the question arises whether a particular offence involves
moral delinquency, the particular case will have to be decided on
its own facts, and the conclusion will have to be in accordance with
the public morals of the time and the common sense of the
community as ultimately judicially interpreted. Here again, the
context and the purpose for which the character of the offence has
to be determined will have a bearing on the matter. The question
has to be approached not in an abstract fashion, but bearing in
mind the implications of the particular offence, and the
requirements and object of the statute for which the moral element
has to be assessed.
Interpretations rendered by various High Courts on
the purport of Section 2 of the Act
48. In the case of Sarvadnya D. Patil and Anr. v.
State of Goa and Ors., reported in 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
39/52

40 Crl.O.P.No.15656 of 2020
Section 2 of the Act. 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.”
49. 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.
40/52

41 Crl.O.P.No.15656 of 2020
…….
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.
13. In paragraph 4 of the complaint, the complainant
would state that the said figure of the Indian Flag which was
placed upside down was published by the petitioner in his
Magazine, thereby the Publisher caused dishonour and
insult to the Indian Flag and Nation.
14. In short, it is the case of the complainant that the
publication of the photograph displaying the event which
took place in a foreign country where the Indian Flag was
placed upside down while the Indian player and the foreign
were playing, would amount to offence under the Act. Thus,
it is clear that it is not the case of the complainant that the
Indian Flag was placed by the Publisher in a wrong way or
upside down.
15. On going through the article, which is the
material on the basis of which complaint has been filed, it is
clear that initially the Indian Flag was kept upside down, but
the same was corrected by the Organisers within a few
minutes. This is only an information disseminated through
the press.
41/52

42 Crl.O.P.No.15656 of 2020
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.
17. Moreover, the writer of the article also would
express his opinion that, “When Indian Flag was placed
upside down, the Indian player Anand did not play well, but
once this was corrected, the Indian player started to play
well and won two games”. This opinion given by the writer of
the article would indicate that the players can play well only
when the National Flag is placed in the correct way.
Therefore, the publication of the photograph and writing the
article about it giving the above opinion would not amount
to insult to the National Flag. On the other hand, it is the
warning to the Organisers not to place the Indian Flag
upside down.
18. It would also indicate that when the Indian players
play in foreign countries, they have to verify whether the
Indian Flag placed in the Chess Table is in a correct way
and thereafter, they have to play and only then, play would
42/52

43 Crl.O.P.No.15656 of 2020
be a fair play and they would also play well.
19. The photograph and the opinion given in the
article by the writer, in my view, is to impress upon the
players as well as the Organisers of the Tournament that at
least in the future, the Flags of the respective countries must
be placed in a correct way and proper placement of the
National Flag only would pave the way for the proper play.
Therefore, this is only a comment by the press which
indicates the importance of the honour to be given to the
National Flag.
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.”
50. In the case of Ajitinder Singh v. State of Punjab,
reported in 2000 SCC OnLine P&H 52, the 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
43/52

44 Crl.O.P.No.15656 of 2020
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.”
51. In P.V. Joseph, v. State of Kerala, reported in
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.”
52. In A.K. Viswanathan v. Angamali Municipality
Represented by its Secretary, reported in 2019 SCC OnLine Ker
44/52

45 Crl.O.P.No.15656 of 2020
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.”
53. In Addanki Ranjith Ophir v. State of Andhra
Pradesh, reported in 2017 SCC OnLine Hyd 499, the Andhra
Pradesh High Court held:
“6. Printing of the photo of the Jesus Christ on the
said book does not in any manner fall within the purview of
Section 2 of the said Act.”
Compulsive Patriotism and it’s Fetishization
54. The judgment of the Hon’ble Supreme Court of
the United States in Texas v. Johnson, reported in 491 U.S. 397
45/52

46 Crl.O.P.No.15656 of 2020
(1989), in a case of flag desecration for burning the Flag, was
rendered with 5-4 majority in favour of a citizen of America, by
laying down that if the purpose of the Act is not attributable to the
sanctity and sovereignty of the nation, then such allegations would
not amount to any kind of punishment. Justice Kennedy, in
concurrence with the opinion of Justice Brennan’s opinion, wrote
this,
“51. Though symbols often are what we ourselves
make of them, the Flag is constant in expressing beliefs
Americans share, beliefs in law and peace and that freedom
which sustains the human spirit. The case here today forces
recognition of the costs to which those beliefs commit us. It is
poignant but fundamental that the Flag protects those who
hold it in contempt.”
55. As it is, there is no doubt that nationalism in a
democracy like India is very vital. But, hyper and surfeit adherence
to it goes against the prosperity of our nation from all its past
glory. The great jurist, late Mr. N.A. Palkhivala pointed out, “we
commenced with one priceless advantage, namely, 5000 years of
civilisation behind us, a civilisation in the words of Ralph Waldo
46/52

47 Crl.O.P.No.15656 of 2020
Emerson “reached the summit of human thoughts”. A patriot is
not one who only raises the Flag, symbolises his national pride and
wear it on his sleeve, but also, a person who bats for good
governance. The symbolisation of national pride is not
synonymous with patriotism, just like how cutting a cake is not
unpatriotic. Rig Veda asks us to let noble thoughts come to us
from every side, which reflects Indian ethos, i.e. tolerance. As
Rabindranath Tagore once remarked, “Patriotism cannot be our
final spiritual shelter; my refuge is humanity. I will not buy glass
for the price of diamonds, and I will never allow patriotism to
triumph over humanity as long as I live.”
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
47/52

48 Crl.O.P.No.15656 of 2020
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
48/52

49 Crl.O.P.No.15656 of 2020
participants, the purpose for which the national Flag was given or
used will be achieved.
57. The Flag Code does provide a mechanism to
destroy flags in private, in a manner consistent with the dignity of
the Flag, and as a responsible citizen, it should be followed in
letter and spirit. Not all will be aware of this procedure, and
therefore, that by itself will not make them susceptible to
committing an offence under Section 2 of the Act. This Court
ventured to give such an extreme illustration only to drive home
the point that a wayfarer, for the mere sake of publicity, should
not be allowed to expose people to criminal prosecution for some
innocuous acts which by themselves cannot be construed to be an
insult to make it an offence under Section 2 of the Act.
58. In view of the above discussion, this Court is of
the considered view that the complaint given by the Respondent
does not make out an offence under Section 2 of the Act, and the
second issue is answered accordingly.
49/52

50 Crl.O.P.No.15656 of 2020
59. In the result, the Order passed by the Court below
in CMP No. 6452 of 2015 dt. 17.02.2017 is hereby quashed, and
the Criminal Original Petition is allowed. In view of this Order,
nothing survives in the Writ Petition filed by the complainant and
the same is closed.
60. Before drawing the curtains, I will be failing in my
duty if I do not acknowledge the assistance rendered by my
interns in providing the research materials, without which I would
not have been able to deliver a consummate judgement on this
important issue. I, therefore, deem it fit to record the same in this
judgement. Consequently, the connected miscellaneous petition is
closed.
22.03.2021
Index: Yes
Internet: Yes
Speaking Order/Non Speaking order
KP
..
50/52

51 Crl.O.P.No.15656 of 2020
To
The Public Prosecutor,
High Court, Madras.
51/52

52 Crl.O.P.No.15656 of 2020
N. ANAND VENKATESH,. J.
KP
Pre-Delivery Order in
Crl.OP No.15656 of 2020
52/52

53 Crl.O.P.No.15656 of 2020
Delivered on: 22.03.2021
.
53/52

15656 of 2020

More Related Content

What's hot (19)

Similar to 15656 of 2020 (20)

Recently uploaded (20)

15656 of 2020