Case BriefsHigh Courts

Madhya Pradesh High Court: S.A. Dharmadhikari, J., allowed a petition which was filed invoking inherent powers of this Court under Section 482 of the CrPC seeking quashment of FIR registered alleging offence punishable under Section 2 of the Prevention of Insults to National Honour Act, 1971 (1971 Act).

A complaint was lodged by Sweety Rajawat, Sub Inspector that she found that in the compound of Balaji ITI College, Gurudwara Road, Sabalgarh, the national flag continued to remain hoisted till 8.30 PM and, as such, intentional insult to National Flag was being caused. Counsel for the petitioners submitted that even if the allegations contained in the FIR are treated to be true, then too they do not constitute any offence as alleged.

The Court perused Section 2 of 1971 Act and derived that it attracts punishment of imprisonment for a term of three years or with fine or both when a person is found in public place within public view burning mutilating, defacing, defiling, disfiguring, destroying, trampling upon or bringing or otherwise bringing into contempt by words spoken or written or by act begin the Indian National Flag. It was further noted that allegation against petitioners is of leaving National Flag at hoisted position at about 8.30 PM i.e. between sunset and sunrise and that act of petitioners does not squarely fall within Section  2 of 1971 Act. Thus, the act of leaving the National Flag in hoisted position even after sunset may be an act of advertent or inadvertent forgetfulness and subject matter of misconduct but not contemptuous unless it is shown that hoisting and flying the National Flag between sunset and sunrise is expressly prescribed as an offence in specific terms.

The fundamental rule of interpretation of penal provision requires that every penal provision is to be interpreted strictly. If an act does not fall within the four corners of the offence described by the statute, then the said act cannot suffer rigors of penal provision.

Reliance was placed on the Supreme Court judgment in R. Kalyani v. Janak C. Mehta, (2009) 1 SCC 516 and it was evident that the act of leaving the National Flag at hoisted position between sunset and sunrise does not satisfy the ingredients which constitute the offence punishable under Section 2 of 1971 Act.

Counsel for respondents submitted that Clause of Section 2 (2.2)(xi) of the Indian Flag Code, 2002 states that allowing National Flag to remain hoisted between sunset and sunrise was prohibited.

The Court perused the abovementioned section and was of the view that the said Flag Code is not “law” as defined in Article 13 of Constitution of India and is a mere compendium of executive instructions as held by the Supreme Court in Union of India v. Naveen Jindal, (2004) 2 SCC 510.

The Court finally held that since the Flag Code does not have any statutory force it cannot attract any offence. The Court allowed the petition and quashed all the consequential proceedings explaining that, the Flag Code laid down that as far as possible National Flag should be flown between sunrise and sunset which meant that it should not be flown between sunset and sunrise. Use of expression “as far as possible” in the said clause of Flag Code, which was a mere instruction, was sufficient for this Court to conclude that flying of National Flag between sunset and sunrise was not prohibited by law.[Gaurishankar Garg v. State of M.P., M.Cr.C. No.18186 of 2021, decided on 24-08-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

For the petitioners: Mr Vivek Khedkar

For the respondent/State: Mr Manish Nayak

Case BriefsHigh Courts

Gauhati High Court: Manish Choudhury, J., granted bail to the woman charged with sedition for using National Flag as a table cloth.

The petitioner, Ms Rajina Parbin Sultana was booked under Sections 120B/124A IPC and Section 2 of the Prevention of Insult to National Honour Act, 1971 and had been in custody since 16-05-2021. The petitioner was accused of using the Indian National Flag as a table cloth on the occasion of the Eid festival when a picture of hers having lunch on that dining table with some guests went viral on social media. Pursuant to the said incident several allegations were made against the petitioner of willfully dishonouring the Indian National Flag.

The petitioner had submitted before the Court that out of the 6 (six) accused persons named in the FIR, 5 (five) of them had already been released on bail. It was argued that even if the accusations made in the FIR were prima facie accepted to be true, the same could not be brought within the purview of the offence under Section 124A, IPC.

On the other hand, the State submitted that the accused-petitioner was the host for the lunch which was held in her house, on 14-05-2021 when the alleged act was committed. It was submitted that there was ample evidence that the accused petitioner had used a table cloth resembling the Indian National Flag while inviting guests to her house on the occasion of Eid festival.

Noticing that the sentence was to the effect that the accused-petitioners were under 30 from a middle-class background and therefore had the clout to influence the investigation”; and considering that the said incident was an unintentional mistake, the Court accepted the defence argument with the suggestion to the petitioner to exercise more care and caution in future. The Bench stated that the question of whether the accused-petitioner, by her act had, committed the offence under Section 2 of the Prevention of Insult to National Honour Act, 1971 in any public place or any other place within public view is to be considered on the basis of the materials collected during the course of the investigation and its admissibility during the course of the trial. Hence,

“It did not prima facie suggest to be an act to have the affect of subverting the Government by bringing that Government into contempt or hatred or creating disaffection against it.”

Considering the period of detention of the accused-petitioner since 16-05-2021 and the progress made in the investigation, the Court held that further custodial detention of the accused-petitioner was not necessary for the purpose of carrying out an investigation of the case and her release on bail at this stage of the investigation was not likely to cause any prejudicial effect in the further investigation, provided she continues to extend her assistance and co-operation in the further investigation of the case.  Accordingly, the petitioner was directed to be released on bail on furnishing a bail bond of Rs 20,000. [Rajina Parbin Sultana v. State of Assam, Bail Appln./1123 of 2021, decided on 08-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Advocate for the Petitioner: Syed Burhanur Rahman

Advocate for the Respondent: PP, ASSAM

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of S.K. Seth, CJ and Vijay Kumar Shukla, J. dismissed a petition seeking orders for compulsory hoisting of National Flags on every public building every day. The petition was filed suggesting a change in the Flag Code of India, 2002 (FCOI).

The present petition was filed as pro bono publico seeking a direction to incorporate the suggestions made in representation regarding Flag hoisting on public buildings on all days in the FCOI. The grievance of the petitioner was that he had submitted a representation to the respondent-Union of India in this regard but till date, no heed had been paid to it.

The learned counsel for the petitioner, Shobha Menon along with Rahul Choubey, urged that the National Flag should be hoisted at all polling booths on the date of voting. He has made further suggestions that the National Flag should be hoisted on certain specific dates as well, i.e., 30th January – the date when Mahatma Gandhi was assassinated; 13th April – when massacre of freedom-fighters took place at Jaliawala Bagh in which almost 379 people lost their lives; 23rd March – when three freedom fighters Shahid Bhagat Singh, Sukhdev and Rajguru were hanged. Other suggestions for the hoisting of the National Flag were, on the demises of constitutional dignitaries and eminent personalities in various fields of the society, at schools and prominent government buildings etc. In substance, the petitioner’s prayer is that these suggestions directed to be incorporated in the FCOI by considering his representation.

Court reiterated the judgment in Union of India v. Naveen Jindal, (2004) 2 SCC 510 in which the respondent was stopped from flying the National Flag atop his factory. Before the High Court, he contended that no law could prohibit the flying of the National Flag by Indian citizens. Flying of National Flag with respect and dignity being a fundamental right, the Flag Code which contains only executive instructions of the Government of India and, thus, being not a law, cannot be considered to have imposed reasonable restrictions in respect thereof within the meaning of Clause (2) of Article 19 of the Constitution of India. The Apex Court held that right to fly the National Flag is a fundamental right but subject to restrictions.

The Court held that there is no mandate in the Flag Code that the National Flag should be hoisted on all days on the public buildings. The matter was thus disposed of, observing that no directions can be issued as prayed for by the petitioner. However, the petitioner was granted liberty to pursue his representation before an appropriate legal forum in accordance with law.[Shyam Narayan Chouksey v. Union of India, 2019 SCC OnLine MP 858, decided on 26-04-2019]

Case BriefsSupreme Court

Supreme Court: Modifying the order dated 30.11.2016 where it was directed that all the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem, the 3-Judge Bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ directed that the persons who are wheel chair users, those with autism, persons suffering from cerebral palsy, multiple disabilities, parkinsons, multiple sclerosis, leprosy cured, muscular dystrophy and deaf and blind be treated not to be within the ambit of the said order.

The Court had, on 30.11.2016, laid down certain directions to be followed in order to ensure respect towards the National Anthem as well as to the National Flag as it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution and one such ideal is to show respect for the National Anthem and the National Flag. [Shyam Narayan Chouksey v. Union of India, 2017 SCC OnLine SC 433, order dated 18.04.2017]

Case BriefsSupreme Court

Supreme Court: In the writ petition where it was prayed a National Policy be framed to promote and propagate the National Anthem, National Song and National Flag in spirit of the Article 51-A to achieve the great golden goals, as set out in Preamble of the Constitution of India, the 3-Judge Bench of Dipak Misra, R.Banumathi and mohan M. Shantanagoudar, JJ said that Article 51-A of the Constitution of India does not refer to ‘National Song’ and only calls for respect towards the National Anthem and National Flag as a fundamental duty.

However, the Court agreed to hear petition on other aspects, including the feasibility of singing /playing the National Anthem and National Song in Schools on every working day and tagged it with Shyam Narayan Chouksey v. Union of India, 2017 SCC OnLine SC 129, which relates to the similar matter. [Ashwini Kumar Upadhyay v. Union of India, 2017 SCC OnLine SC 144, order dated 17.02.2017]

Case BriefsSupreme Court

Supreme Court: Stating that the love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag, the Court issued the following directions:

  • The National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.
  • There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour.
  • National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.
  • All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.
  • Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.
  • When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.
  • The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

The bench of Dipak Misra and Amitava Roy, JJ said that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution and one such ideal is to show respect for the National Anthem and the National Flag. [Shyam Narayan Chouksey v. Union of India, 2016 SCC OnLine SC 1411, decided on 30.11.2016]