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2012 Supreme(HP) 284
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Kurian Joseph, Dharam Chand Chaudhary, JJ.
Vipan Guleria – Petitioner
Versus
Union of India through Secretary, Ministry of Home Affairs, Govt. of India, New Delhi - Respondents
CWP No.: 5243 of 2012
Decided on : 14.09.2012.
For the petitioner:Mr. R.L. Chaudhary, Advocate.
For the Respondents:Mr. Sandeep Sharma, Assistant Solicitor General of India for respondent No.1. Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Additional Advocate General and Mr. Ramesh Thakur, Assistant Advocate General for respondents No.2 and 3.
The fundamental right to fly the National Flag, the regulations on its use, and the consequences of disrespecting the flag as per the Prevention of Insults to National Honour Act, 1971.
Headnote:
National Flag - Flag Code of India - 2002, Prevention of Insults to National Honour Act, 1971 - The judgment discusses the provisions contained under the Flag Code of India, 2002 and the Prevention of Insults to National Honour Act, 1971. It also refers to the law laid down by the Apex Court in Union of India Versus Naveen Jindal and Another (2004) 2 SCC 510 and V.K. Naswa Versus Home Secretary, Union of India and others (2012) 2 SCC 542. The court emphasizes the fundamental right to fly the National Flag, the regulations on its use, and the consequences of disrespecting the flag.
Fact of the Case:
The complaint is about the incorrect hoisting of the National Flag in the office of the respondent. The court examines the provisions of the Flag Code of India, 2002 and the Prevention of Insults to National Honour Act, 1971, and the conduct of the official responsible for hoisting and lowering the flag.
Finding of the Court:
The court finds that while the official followed the prescribed procedures for hoisting and lowering the National Flag, his act of attending a phone call during the process amounted to disrespect as per the Prevention of Insults to National Honour Act, 1971. The court directs the authorities to ensure proper hoisting of the National Flag and to provide training to officials responsible for this task.
Issues: The main issue is whether the conduct of the official responsible for hoisting and lowering the National Flag amounted to disrespect as per the Prevention of Insults to National Honour Act, 1971.
Ratio Decidendi: The court emphasizes the fundamental right to fly the National Flag, the regulations on its use, and the consequences of disrespecting the flag as per the Prevention of Insults to National Honour Act, 1971.
Final Decision: The court takes a lenient view of the instance of disrespect shown by the official and directs the authorities to ensure proper hoisting of the National Flag and provide training to officials responsible for this task.
Justice Dharam Chand Chaudhary, J. (Oral):
The complaint herein is that in the office of respondent No.3 the National Flag is not being hoisted in accordance with the provisions contained under the Flag Code of India. The issue so brought to this Court by filing the present writ petition is of vital significance and needs adjudication in the light of the provisions contained under the Flag Code of India, 2002 and also the Prevention of Insults to National Honour Act, 1971 and also the law laid down by the Apex Court.
2. The Apex Court while answering a question in Union of India Versus Naveen Jindal and Another (2004) 2 SCC 510 that the right to fly the National Flag by an Indian citizen is a fundamental right within the meaning of Article 19(1)(a) of the Constitution of India, has adjudged the honour and glory of the Indian National Flag in the following words:-
”7. Before we proceed further it may be remembered that from time immemorial, people have laid down their lives with a view to salute their own flag. What is so compelling in the piece of cloth called the National Flag, that people make even the supreme sacrifice for its sake? National Flag indisputably stands for the whole nation, its ideals, aspirations, its hopes and achievements.
8. “A National Flag” as pointed by Lt. Cdr. K.V. Singh in his book Our National Flag is the most solemn symbol of a country. Be it a Head of the State, King or peasant, salutes it. A piece of cloth called the National Flag stands for the whole nation, its honour and glory. When it goes up the flag mast, “the heart of a true citizen is filled with pride”. In his foreword to this very book, Mr. R. Venkataraman, former President of India, referred to the struggle for independence and said as under:
“Our flag, therefore, is both a benediction and beckoning. It contains the blessings of all those great souls who brought us to freedom. But it also beckons us to fulfil their vision of a just and united India. As we confront crucial challenges to our security, our unity and integrity, we cannot but heed to the call of this flag to rededicate ourselves to the establishment of that peaceful and just order wherein all Indians irrespective of creed, caste or sex will fulfil themselves.”
3. The question as to whether the Flag Code of India is a law or not, has been answered by the Apex Court again in Naveen Jindal’s case, supra, as under:-
“Before we proceed further, it is necessary to deal with the question, whether Flag Code is “law”? Flag Code concededly contains the executive instructions of the Central Government. It is stated that the Ministry of Home Affairs, which is competent to issue the instructions contained in the Flag Code and all matters relating thereto are one of the items of business allocated to the said Ministry by the President under the Government of India (Allocation of Business) Rules, 1961 framed in terms of Article 77 of the Constitution of India. 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;”
4. The scope of provisions contained in the Flag Code of India has also been discussed by the Apex Court in the judgment, ibid, and finally held as under:-
“90. For the aforesaid reason, we hold that: (i) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1)(a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation. (ii) The fundamental right to fly the National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under clause (2) of Article 19 of the Constitution of India. (ii
