Flouting the Flag Code

By Maithili Parikh, Government Law College, Mumbai.

The national flag of a country represents the hopes and aspirations of its citizens and this holds especially true for a sovereign democracy like India. The final revision of the specifications of the Indian flag was completed in 1968; the saffron was to represent renunciation; the white was to denote the path of truth in our conduct; the green was to show our relation to the soil, where everything grows; and the blue Ashoka Chakra in the centre was to represent the wheel of dharma and motion. The national flag is the allegory of our national pride and over the last half-century several people have benevolently sacrificed their lives to keep the tricolour flying high in all its glory. However a palpable lack of awareness is often noticed, amongst people as well as organisations and agencies, in regard to the law, conventions and practices that apply to the display of the National Flag. The use (including misuse and insult) and hoisting of the flag is regulated by the Flag Code of India, 2002 and the Prevention of Insults to National Honour Act, 1971.

In 2005, the Prevention of Insults to National Honour Act, 1971 was amended in response to demands from the common citizens in general, and the sportspersons in particular, who wished to express their love and affection for the National Flag by displaying it on their dresses, headgear, T-shirts, vests, etc., in a respectable manner. Thus the law was amended and enabled the public to use the National Flag in the above-mentioned manner with the safeguard that the National Flag shall not be used to wear in any way below the waist and nor would it be embroidered or printed in any items of daily use such as cushion, handkerchiefs, undergarments or napkins. The Flag Code of India, 2002, in comparison, is not the typical statutory regulation or rule but is rather a consolidation of all such conventions, practices and laws for the benefit of all concerned. It comprehensively includes executive instructions issued by the Government of India from time to time. Part I of the Code contains a general description of the National Flag, while Part II is devoted to the display of the National Flag by members of private, public or educational organizations and Part III relates to display of the ‘tiranga’ by Central and State Governments and their agencies. The Flag Code of India, 2002, therefore, replaced the existing Flag Code-India.

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There have been several incidents of eminent public figures disrespecting the tricolour, such as Shahrukh Khan, Sachin Tendulkar, organisers of the Commonwealth Games of India; but perhaps the most recent and startling incident with regards to the National Flag is Prime Minister Modi’s brush with the Flag Code of 2002. Amidst the numerous handshakes, multitude of business meetings, warm tweets and the photo opportunities, was the serious allegation levied against the Prime Minister, of violating Clause 2.1(iv) of Section I, Part II of the Flag Code of India, 2002. 

This controversy was triggered when Prime Minister Modi, who was in New York during the happening of the incident, autographed the Indian flag that celebrity chef Vikas Khanna was supposed to present, along with the copy of the recipe book, ‘Utsav’, to the President of the United States of America, Barack Obama. It occurred when Chef Vikas Khanna prepared the menu for Prime Minister Modi’s dinner with the Fortune 500 CEOs and the Chef went as far as to display the autographed flag to international media. However, the flag was later taken away in order to investigate into the violation of the Flag Code of India. This gesture, which may have been purely innocent on the part of the Prime Minister, appears to violate Clause 2.1(iv) of Section I, Part II, which reads, “lettering of any kind shall not be put upon the Flag” and violates Clause 4(f) of Section 3, Part II, which construes “putting any kind of inscription upon the National Flag” as disrespect to the tricolour.

Even though it looks more like an artist’s impression of the tricolour than the official Indian flag, Explanation 2 enforces strict liability by providing that “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.” Hence this defence clearly does not hold water and cannot be applied in the present case as it covers artwork of any kind. Applying the Prevention of Insults to National Honour (Amendment) Act, 2005, which provides that “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”, it is clear that a violation did exist as supported by Supreme Court Lawyer, Sanjay Hegde. However, since Prime Minister Modi is on foreign soil, the Indian State cannot exercise jurisdiction over the event and even if a complaint is filed after the perpetrator is back on Indian soil, the worthy defence of the law not being applicable in a foreign land can be exercised. This would also defeat the provisions of the Indian Penal Code that provide for disrespect to the National Flag.

While there is no official comment from either the Opposition or the Modi Government, social media has witnessed a twitter frenzy with hashtags such as #ModiDisrespectsTricolor and #ModiInsultsTricolour being circulated and shared. Honouring the National Flag is the responsibility of the 125 crore people in our country and especially so the duty of the Prime Minister. The Director General of the Press Information Bureau tweeted that the Prime Minister had not signed the tricolour but there seems to be no official stance yet.

Respect to the National Flag of India is a matter of paramount importance, and this holds true especially in countries abroad and where the person in question is a top public figure and office bearer such as the Prime Minister of India. Even though, it is quite clear that no fine or imprisonment will be meted to him, it is vital to understand that even the slightest implications of such sort could tarnish the reverence to the flag. All the impressive press play, sleek meetings with Fortune 500 companies, and interaction with the American President cannot compensate for the respect that the tricolour of India deserves.

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