2012 Supreme(SC) 18

2012 (1) Supreme 381
SUPREME COURT OF INDIA
Dr. B.S. Chauhan and Swatanter Kumar, JJ.
V.K. Naswa — Petitioner
versus
Home Secretary, U.O.I. and Ors. — Respondents
Writ Petition (Civil) No. 533 of 2011
Decided on : 9-1-2012

IMPORTANT POINTS
1. It is a settled legal proposition that the court can neither legislate nor issue a direction to the Legislature to enact in a particular manner.
2. Writ Court, in exercise of its power under Article 226, has no power even indirectly require the Executive to exercise its law-making power.

Headnote:Constitution of India,1950-Aricle 32- Writ petition filed by petitioner making grievance that respondents Yog Guru Baba Ramdev; Shri Anna Hazare, Mrs. Kiran Bedi and others have, on several occasions insulted National Flag and violated the norms of waiving of National Flag, as provided in the Flag Code 2002- Relying upon decision in case of Union of India v. Naveen Jindal & Anr., AIR 2004 SC 1559 held that there is no restriction on the display of National Flag by members of general public, private organizations and educational institutions etc. except to the extent provided in the Emblems and Names (Prevention of Improper Use) Act, 1950 and Prevention of Insults to National Honour Act, 1971 and any other law enacted on the subject- Flag Code is not the law within the meaning of Article 13(3)(a) of the Constitution of India-However, right to fly National Flag is a fundamental right- Further Flag Code provides guidelines to be observed for preservation of dignity and respect to the National Flag- Thus, in case a person shows any kind of disrespect to the National Flag or does not observe the terms contained in the Code, legal action may be taken against him under relevant statutory provisions- However, these are questions of facts as to whether on a particular event a particular person has shown any kind of disrespect to National Flag- For that purpose, since petitioner had already filed complaint before authorities concerned, he could not pursue remedy simultaneously by filing writ petition - Apart from that ,such a factual controversy could not be examined in a petition under Article 32 of the Constitution of India-Petition dismissed (Paras 3, 4)

        Constitution of India,1950-Aricle 32- Writ petition filed by petitioner to issue direction to the Central Government through Ministry of Law & Justice to revise the Flag Code of India 2002 and amend the same incorporating the amendment suggested by the petitioner himself- It is a settled legal proposition that the court can neither legislate nor issue a direction to the Legislature to enact in a particular manner-Relying upon decision in case of Mullikarjuna Rao & Ors. etc. etc. v. State of Andhra Pradesh & Ors held that Writ Court, in exercise of its power under Article 226, has no power even indirectly require the Executive to exercise its law-making power- The power under Article 309 of the Constitution to frame rules is the legislative power- This power under the Constitution has to be exercised by the President or the Governor of a State, as the case may be- The Courts cannot usurp the functions assigned to the Executive under the Constitution and cannot even indirectly require the Executive to exercise its law-making power in any manner- The Courts cannot assume to itself a supervisory role over the rule-making power of the Executive under Article 309 of the Constitution.- Court has a very limited role and in exercise of that, it is not open to have judicial legislation- Neither the Court can legislate, nor it has any competence to issue directions to the legislature to enact the law in a particular manner-. Facts of the case not warranted any interference by Court- In such a fact-situation, no relief could be granted to petitioner- Petition dismissed (Paras 5, 6, 19, 20)

       Facts of the Case :

        Writ petition was filed by petitioner herein in the instant case making grievance that respondents Yog Guru Baba Ramdev; Shri Anna Hazare, Mrs. Kiran Bedi and others have, on several occasions insulted National Flag and violated the norms of waiving of National Flag, as provided in the Flag Code 2002. Petitioner sought that a direction be issued to the Central Government through Ministry of Law & Justice to revise the Flag Code of India 2002 and amend the same incorporating the amendment suggested by the petitioner himself.

       Findings of the Court :

        A.Relying upon decision in case of Union of India v. Naveen Jindal & Anr., AIR 2004 SC 1559 held that there is no restriction on the display of National Flag by members of general public, private organizations and educational institutions etc. except to the extent provided in the Emblems and Names (Prevention of Improper Use) Act, 1950 and Prevention of Insults to National Honour Act, 1971 and any other law enacted on the subject. Flag Code is not the law within the meaning of Article 13(3)(a) of the Constitution of India. However, right to fly National Flag is a fundamental right. Further Flag Code provides guidelines to be observed for preservation of dignity and respect to the National Flag. Thus, in case a person shows any kind of disrespect to the National Flag or does not observe the terms contained in the Code, legal action may be taken against him under relevant statutory provisions. However, these are questions of facts as to whether on a particular event a particular person has shown any kind of disrespect to National Flag. For that purpose, since petitioner had already filed complaint before authorities concerned, he could not pursue remedy simultaneously by filing writ petition . Apart from that ,such a factual controversy could not be examined in a petition under Article 32 of the Constitution of India.

        B. It is a settled legal proposition that the court can neither legislate nor issue a direction to the Legislature to enact in a particular manner.Relying upon decision in case of Mullikarjuna Rao & Ors. etc. etc. v. State of Andhra Pradesh & Ors held that Writ Court, in exercise of its power under Article 226, has no power even indirectly require the Executive to exercise its law-making power. The power under Article 309 of the Constitution to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State, as the case may be. The Courts cannot usurp the functions assigned to the Executive under the Constitution and cannot even indirectly require the Executive to exercise its law-making power in any manner. The Courts cannot assume to itself a supervisory role over the rule-making power of the Executive under Article 309 of the Constitution. Court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the Court can legislate, nor it has any competence to issue directions to the legislature to enact the law in a particular manner. Facts of the case not warranted any interference by Court. In such a fact-situation, no relief could be granted to petitioner. Petition was dismissed.