Failure To Lower Indian Flag After Sunset Not A Crime Unless Intent To Insult: Kerala High Court
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Kerala High Court quashes case against ex-municipal secretary, says no offence without deliberate disrespect to National Flag.
Kochi: On August 4, the Kerala High Court quashed a criminal case against Vinu C Kunjappan, a former municipal secretary, who was accused of showing disrespect to the Indian National Flag by not lowering it at sunset after the 2015 Independence Day celebrations.
The Court held that there was no deliberate insult or intention to disrespect the flag, and hence, no offence was committed under the Prevention of Insults to National Honour Act, 1971.
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This case came up when, on August 15, 2015, the Indian National Flag was hoisted at the Angamaly Municipality compound in the presence of Vinu C Kunjappan.
However, it was alleged that the flag was not taken down at sunset as required, and remained hoisted until noon on August 17, 2015.
The Angamaly Police later registered a suo motu FIR, stating that this was a violation of Section 2(a) of the Prevention of Insults to National Honour Act, 1971, along with Rule 3.6 of the Flag Code of India, 2002.
The case reached the Judicial First Class Magistrate Court in Angamaly in 2016, and Vinu C Kunjappan approached the Kerala High Court requesting that the proceedings be cancelled.
Justice Kauser Edappagath, who heard the matter, examined Section 2 of the 1971 Act. This section deals with acts that show disrespect to the National Flag, including burning, defacing, or mutilating it. It also has a list of examples (in Explanation 4), such as letting the flag touch the ground or using it as a drapery.
The High Court clearly stated:
“Unless there is a deliberate action with an intention to insult the national honour or show disrespect to the National Flag, the provisions of the Act of 1971 cannot be attracted. In the absence of any intention on the part of the petitioner in deliberately not lowering the National Flag after sunset, the said act cannot be said to be one showing insult or disrespect to the National Flag.”
The Court added that the act of not lowering the flag after sunset is not listed under the examples of disrespect in the law. Therefore, unless there is an intentional and disrespectful act, it cannot be seen as a punishable offence.
Importantly, the Court also noted the legal status of the Flag Code of India, 2002. The Code, which lays down guidelines on the usage and display of the National Flag, is not a law passed by Parliament.
The Court observed:
“There is no material to show mens rea on the part of the petitioner to show disrespect to the National Flag and thereby to undermine sovereignty of the nation. Flag Code, 2002 contains executive instructions of the Central Government and, therefore, it is not a law within the meaning of Article 13(3)(a) of the Constitution of India. It is a model code of conduct to be followed compulsorily by all the citizens of India. Penal consequences cannot be invoked unless there is a statutory provision for the same.”
This means that even though the Flag Code must be followed, not following it alone cannot result in criminal punishment unless there is an actual law which provides for such punishment.
In light of this reasoning, the Court held that Kunjappan’s actions did not amount to an offence and allowed his petition. It ordered that the final police report and all further legal proceedings pending before the trial court be quashed.
The petitioner, Vinu C Kunjappan, was represented by a legal team consisting of Advocates S Rajeev, KK Dheerendrakrishnan, V Vinay, D Feroze and Anand Kalyanakrishnan. Public Prosecutor Sangeetha Raj NR represented the State of Kerala.
Case Title:
Vinu C Kunjappan v. State of Kerala
Read Order:
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