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IN THE HIGH COURT OF ALLAHABAD
D. P. S. CHAUHAN, M. KATJU
IN RE : SCOPE AND EXTENT OF APPLICABILITY OF FLAG CODE AND USE OF NATIONAL FLAGS ON THE CARS BY THE PUISNE JUDGES OF THE HIGH COURT - Appellant
Versus
STATE - Respondents
C. M. A. 9011 Of 1993
Decided On : 08/31/1993
HIGH COURT JUDGES - USE OF NATIONAL FLAG ON VEHICLES - ARBITRARY EXCLUSION - MANDAMUS ISSUED.
Fact of the Case:
The issue in question was whether High Court Judges were entitled to use the National Flag on their vehicles. The Flag Code, issued by the Central Government, Ministry of Home Affairs, limited the privilege of flying the National Flag on motor cars to certain dignitaries, including the President, Vice-President, Governors, Lieutenant Governors, Prime Minister, Cabinet Ministers, Ministers of State, Deputy Ministers, Chief Ministers, Speakers, Deputy Speakers, Chief Justices, and Judges of the Supreme Court. However, Puisne Judges of the High Courts were not included in this list.
Finding of the Court:
The court held that the omission to provide use of the National Flag to the Hon'ble Judges of this court on their cars was wholly arbitrary and consequently illegal. The court found that even Deputy Ministers of the State Governments were included in the list of authorities entitled to carry the national flag on their vehicles, while Puisne Judges of the High Court, who were higher in the order of precedence, were denied this privilege. The court also noted that Chief Justices of the High Courts were permitted to use the national flag on their cars, but there was no such provision for Puisne Judges, which was arbitrary since Puisne Judges were not subordinate to the Chief Justice.
Issues: 1. Whether the omission to provide use of the National Flag to the Hon'ble Judges of this court on their cars was arbitrary and illegal? 2. Whether Puisne Judges of the High Courts were entitled to use the National Flag on their vehicles?
Ratio Decidendi: The court relied on the following principles in reaching its decision: * The Flag Code, issued by the Central Government, Ministry of Home Affairs, was arbitrary in excluding Puisne Judges of the High Courts from the list of authorities entitled to carry the national flag on their vehicles. * The order of precedence issued by the U.P. Government placed Puisne Judges of the High Court at serial No. 19 along with Ministers of State in the State Government, whereas Deputy Ministers of the U.P. Government were at serial No. 20. This showed that Deputy Ministers were lower in the order of precedence as compared to the Puisne Judges, and hence it was arbitrary to disentitle the Puisne Judges from using the national flag on their cars while providing that the Deputy Ministers, who were lower in the order of precedence, shall use the national flags on their cars. * The Notification No. 33 Press / 79 dated 26-7-1979 issued by the Central Government also showed that Puisne Judges of the High Courts were higher in the order of the precedence, as compared to the Deputy Ministers of the State Government. * It was arbitrary to deny the National Flag to the Puisne Judges while providing to the Chief Justice only, since Puisne Judges were not subordinate to the Chief Justice and the only distinction between them was that the Chief Justice was entitled under the Rules of the Court to allocate the jurisdiction of the judges and had some additional administrative powers. * The reasoning given in the counter affidavit filed by the Central Government that the main purpose of flying the flag on a car was essentially to enable quick movement in the streets and that a flag on a car did not demonstrate the importance of a person inside the car was no good ground to deny the use of National Flag to the Hon'ble Judges of this Court.
Final Decision: The court allowed the petition and issued a mandamus to the respondents, directing the Registrar to get the National Flag affixed on the cars of the Hon'ble Judges of this Court forthwith. The court also directed the respondents and other authorities not to create any impediment in the use of National Flag on the cars of Hon'ble Judges of this Court.
( 2 ) ON 15-3-1993 we passed the following order. "the members of the Bar of this Court have brought to the notice of this court the Flag Code as well as the Warrant of Precedence issued by the Government of India and by the State of Uttar Pradesh, and they pointed out that in the Flag Code the Ministers and the Deputy Ministers of the State are under item 5 to clause 10. 4 and are provided the facility of using National Flag on their vehicles. The status of the Puisne Judges of the High Court, as per admitted position of the Government of India under Warrant of precedence is at par with the State Ministers in their Status, which is provided at item No. 20 of the Warrant of Precedence dated 10-3-73. Further, outside the area of their jurisdiction the position of the Puisne Judges of the High Court is equivalent and akin to the State Ministers of the State which position is stated at item No. 22. The position of the Chief Secretary in the Warrant of precedence is subsequent to the Judges and is at serial No. 25. The position of the Puisne Judges in the Warrant of Precedence - (Subsidiary) - issued by the State Government under notification No. 5333 / III-72 (1)-73 dated 30/09/1978 is placed at serial No. 19 in which category the Deputy Chairman, Vidhan Parishad and the State Ministers are placed subsequent to the Puisne Judges though in the same column and category. The position of the Deputy Ministers is at item No. 20 which comes subsequent to the Puisne Judges and the State Ministers. The position of the Chief Secretary is at serial No. 24. Apart from this the Advocate General is also included in the Warrant of Precedence who has been at serial No. 26. It would be worthwhile to notice that in the Flag Code, paragraph 10. 4 item No. 5 even the Deputy Ministers of the State are entitled for using the National Flag on their Cars. From what has been stated above, prima facie, we are of the opinion that it is a case which requires consideration by this Court and accordingly we direct the Registrar of this Court for registering this petition as a petition under the suo motu exercise of power under Article 226 of the Constitution of India. We consider it appropriate to issue notice to the Central Government and to the State Government for consideration of the matter regarding whether the Puisne Judges of the High Court can be allowed to be kept outside the arena of the Flag Code and whether they are entitled to carry the National Flag on their cars. Let the notices be served on the Senior Standing Counsel of Union Government, and the Chief Standing Counsel for the State of U. P. who is present in the court and he has accepted the notice on behalf of the State of U. P. He prays for and is granted one months time for filing an affidavit dealing with the matter. The Senior Standing Counsel of the Central Government is also allowed one months time for filing the affidavit and the relevant materials in this connection. Apart from Registry of this Court, Shri Babu Ram Tripathi, learned Chief Standing Counsel of the State of U. P. shall inform about this order to the Senior Standing Counsel of the Central Government. The notices be served at the Courts expense. Let the petition be listed before us on 19/04/1993. "
( 3 ) IN pursuance of this order counter affidavits have been filed by both State and Central Governments, and we have heard learned Chief Standing Counsel of the State Government and learned Senior Standing Counsel of the Central Government. We have also perused the Flag Code issued by the Central Government, Ministry of Home Affairs, which has been annexed to the counter affidavit of the Central Government.
( 4 ) THE relevant provision in the Flag Code with which we are concerned is Rule 10. 4 which states :-"10. 4. Motor cars :- (a) The Privilege of flying the National Flag on motor cars is l
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