Failure to lower Indian Flag after sunset not a crime unless...:Kerala High Court

The Kerala High Court recently quashed criminal proceedings against a former municipal secretary accused of dishonouring the Indian National Flag by failing to lower it at sunset after the 2015 Independence Day celebrations. [Vinu C Kunjappan v. State of Kerala]

Justice Kauser Edappagath observed that failure to lower the flag at sunset would not, by itself, amount to an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971, unless it was accompanied by an intention to insult or show disrespect to the National Flag.

"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 order stated.

On August 15, 2015, during Independence Day celebrations at the Angamaly Municipality compound, the Indian National Flag was hoisted in the presence of Vinu C Kunjappan, then Secretary of the Municipality. However, the flag was allegedly not lowered at sunset and remained hoisted until noon on August 17.

Following this, the Angamaly Police registered a suo motu FIR, alleging violation of Section 2(a) of the 1971 Act, read with Rule 3.6 of the Flag Code of India, 2002. When proceedings began in 2016 before the Judicial First Class Magistrate Court, Angamaly, Kunjappan approached the High Court to quash the same.

The Court examined Section 2 of the 1971 Act, which penalises acts such as burning, mutilating, defacing or otherwise showing disrespect to the National Flag. The provision also contains a list of illustrative acts deemed as disrespectful under Explanation 4 (including allowing the Flag to touch the ground, using it as a drapery, or flying it at half mast without authorisation).

It noted that not lowering the Flag after sunset did not fall under any of the listed acts and clarified that such an omission on the part of the petitioner without any deliberate intention could not be considered a punishable offence.

The Court further clarified that the Flag Code of India, 2002, while being an executive instruction, was not a law within the meaning of Article 13(3)(a) of the Constitution. Thus, any non-compliance with it would not attract criminal liability.

"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," the Court added.

Concluding that the petitioner's actions did not amount to a punishable offence, the Court quashed the final report and all further proceedings pending before the trial court.

The petitioner was represented by Advocates S Rajeev, KK Dheerendrakrishnan, V Vinay, D Feroze and Anand Kalyanakrishnan.

Public Prosecutor Sangeetha Raj NR appeared for the State.

[Read Order]