What Is The Law Governing The Usage Of The Indian National Flag?
The Indian National Flag, with the tricolours of Saffron, White and Green, and
with Asoka Chakra at its Centre, embodies National Unity. Laws and regulations,
namely, the Prevention of Insults to National Honour Act, 1971 and the Flag Code
of India, 2002 were framed to govern the dignified representation of the Indian
Flag. The citizens' duty to respect the ideals of the National Flag was also
inserted in the Constitution of India through Article 51-A (a), wherein, it
imposes a Fundamental Duty on citizens to inter alia abide by the Constitution
of India and respect the National Flag. Let's explore the width of the Right of
Hoisting the National Flag and restrictions pertaining to the same.
However, there are other Articles of the Constitution of India that come into
play with regard to using the National Flag. One such key Article is Article 19
(1)(a) in Constitution of India, which guarantees to all citizens the 'Right To
Freedom Of Speech And Expression'. The Supreme Court in [Union of India Vs Naveen Jindal & Anr., (2004) 2 SCC 510] held that this right includes the Right
To Fly The National Flag, as it is an expression and manifestation of one's
allegiance and sentiments of the Pride for the Nation.
Hoisting Flag As A Fundamental Right
In [Union of India vs Naveen Jindal & Anr. (supra), the Supreme Court of India recognised
"Right to fly the National Flag freely with respect and dignity is a fundamental
right of a citizen within the meaning of Article 19 (1) (a) of the Constitution
of India being an expression and manifestation of his allegiance and feelings
and sentiments of pride for the nation."
However, while doing so, the Supreme Court also opined that the Constitution of
India did not confer an absolute 'Right Of Free Speech And Expression' and the
same was subject to reasonable restrictions by law under clause 2 of Article 19
(1)(a) of the Constitution of India.
Thus, the Supreme Court stated that so long as the expression (of flying a Flag)
is confined to "Nationalism, Patriotism and Love For Motherland", the use of the
National Flag by way of expression of those sentiments would be a Fundamental
"The pride of a person involved in flying the Flag is the pride to be an Indian
and that, thus, in all respects to it must be shown. The State may not tolerate
even the slightest disrespect."
The Supreme Court also held that Flag Code is not a law within the meaning of
Article 13 (3)(a) of the Constitution of India and hence it could not restrict
the free exercise of the 'Right Of Flying The National Flag' under Article 19
(1)(a). However, the Flag Code to the extent it provides for preserving respect
and dignity of the National Flag, the same deserves to be followed.
It was further held that the Fundamental Right to fly National Flag is not an
absolute right but a qualified one being subject to reasonable restrictions
under clause 2 of Article 19 of the Constitution of India; The Emblems and Names
(Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National
Honour Act, 1971 regulate the use of the National Flag.
It should be noted that rights under Article 19(1)(a) of Constitution of India
are not absolute and can be reasonably restricted by law under clause 2 of the
What Amounts To "Insulting The National Flag"?
Accordingly, there exist restrictions on exercising the Fundamental Right to
hoist a Flag. One such restriction on the right has been placed through the
Prevention of Insults to National Honour Act, 1971 which regulates the manner in
which the National Flag can be used and, more importantly, the manner in which
it cannot be used. The legislation was enacted to curb incidents of disrespect
to the National Flag.
Section 2 of the Act makes insulting the National Flag a punishable offence,
carrying a sentence of three years, or fine, or both. The Section reads:
'Whoever in any public place or in any other place within public view burns,
mutilates, defaces, difiles, 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.'
The definition has two keywords: 'Indian National Flag' and 'disrespect to … the
Indian National Flag'.
The Indian National Flag, for the purposes of the Act, means any virtual
representation of the Flag made of any substance, which inter alia includes any
picture, painting, drawing, photograph etc. [as per Explanation 2 to Section 2]
Explanation 4 defines 'disrespect to the Indian National Flag' as a gross
affront or indignity offered to the Flag. It also provides specific instances
which amount to disrespecting the Flag. These are:
- Dipping the National Flag in salute to a person or thing i.e., lowering
the Flag as a salute (sub-section (b)).
- Flying the National Flag at half-mast except on occasions where it is
flown at half-mast on public buildings (sub-section (c)).
- Using the National Flag as clothing to drape someone/something except in
State Funerals or Armed Forces or other Para-Military Funerals (sub-sections
(d) and (j)).
- Using the National Flag as part of a costume or accessory which is worn
below the waist of a person (sub-section (e)(i)).
In the long list of people being accused of disrespecting the flag are notable
names such as Sachin Tendulkar, who cut a tri-coloured caked during the 2007 ICC
World Cup, Shahrukh Khan who was photographed waving the National Flag upside
down, Mandira Bedi who was booked under Section 2 of the Prevention of Insults
to National Honour Act, as she wore a saree with images of the National Flags of
participating countries in 2007 Men's Cricket World Cup telecast and the image
of the Indian National Flag was below her waist and near her legs; and British
musician Chris Martin who stirred a controversy during a concert in India, when
he tucked the Indian National Flag in the back pocket of his jeans.
The alleged act that disrespects the National Flag should be intentional. In
other words, the accused must have the intention to disrespect or bring into
contempt the National Flag. Comments which are critical of the National Flag or
the government and are aimed at seeking an alteration of the Flag are not
covered by the section.
Interpretations Rendered By High Courts On The Purport Of Section 2 of the Act
The Judiciary, through its Judgments, has laid down a very high threshold for
prosecuting someone for disrespecting the National Flag. Only in cases where the
intention to disrespect the National Flag was apparent and mala fides were
established, can a prosecution under the Act to succeed.
In the case of [Sarvadnya D. Patil & Anr. Vs. State of Goa & Ors., 2001 SCC
OnLine Bom 753], the Bombay High Court held that there should be an intentional
overt act in order to attract an offence under Section 2 of the Prevention of
Insults to National Honour Act, 1971.
The relevant portions of the Judgement are
5. It is doubtful whether omission to hoist the National Flag or hold the Flag
Hoisting ceremony on the aforesaid days of national importance would fall within
the ambit of "or otherwise brings into contempt".
The definition clearly
indicates positive acts such as burning, mutilating, defacing, defiling, etc. In
order to be liable for punishment under Section 2, it is necessary that the act
complained of must be intentional. The omission to hold the flag hoisting
ceremony cannot be said to be sui generis with the positive acts mentioned
preceding the words "or otherwise". Even otherwise, there is no statutory
provision making it mandatory to hold the flag hoisting ceremony on 19th
December, 2000 i.e. Goa Liberation Day and other days of national importance."
On the other hand, in a case where the action of an accused was a mere mistake
lacking an intention to disrespect the National Flag, charges were dropped by
the Madras High Court .
In The Publisher, Sportstar Magazine, Chennai v. Girish
Sharma, reported in 2000 SCC OnLine Mad 896, this Court, while dealing with a
case as to whether an opinion published in a magazine highlighting the
importance of the national Flag in light of the Flag being displayed upside down
at a sports tournament, held as follows:
10. The reading of the above provision would make it clear that whoever in any
public place brings into contempt the Indian National Flag shall be punished.
……. 12. The perusal of the above paragraphs would make it clear that the Indian
Flag was placed upside down in the Tournament took place on 8.3.1997, in which
Chess was played by V. Anand and Veselin Topalov and the said figure was
published by the Publisher, the petitioner herein.
16. For placing Indian Flag upside down, it cannot be stated that the Publisher
was in any way responsible. On the other hand, the mistake committed by the
Organisers of the Tournament was clearly displayed and depicted through the
photograph informing the reading public that the mistake committed by the
Organisers in placing the Indian Flag in a wrong way at the beginning stage has
been corrected by them even in the middle of the play.
20.Under those circumstances, this publication of the photograph and the events
which took place in the foreign country while the chess was played along with
the opinion of the writer of the article, would not attract any ingredients of
Section 2 of the Act."
Recently Madras High Court in Crl. O P No.15656 of 2020 titled [State
Represented by Inspector of Police Vs D. Senthilkumar], while quashing the
criminal proceedings against the accused held that:
56. Patriotism is not determined by a gross physical act. The intention behind
the act will be the true test, and it is possible that sometimes the very act
itself manifests the intention behind it. In the present case, even if the
entire set of facts stated in the complaint are taken as it is, it must be seen
as to what would have been the actual feeling with which the participants would
have dispersed after the function was over.
Will they be feeling great pride in
belonging to this great nation, or would the pride of India have come down on
the mere cutting of a cake during the celebration? Without any hesitation, this
Court can hold that the participants would have felt only the former and not the
latter. For proper understanding, let us take a hypothetical case where there is
widespread participation in an Independence Day or Republic Day celebration.
During such celebrations, the participants are provided with a national flag to
be worn by them. In reality, after the participants leave the venue on
completion of the celebrations, they do not continue to possess this Flag
forever, and it becomes part of any other waste paper. Will this mean that each
of the participants has insulted the national Flag and should be proceeded
against under Section 2 of the Act?
The obvious answer is in the negative. If persons are allowed to give such broad
meaning to the word 'insult', many will become very uncomfortable and hesitant
to handle the national Flag. The National Flag is given during the function as a
symbol of our national pride. Once such a feeling is created in the minds of the
participants, the purpose for which the national Flag was given or used will be
This is not the first Judicial pronouncement establishing that an act allegedly
disrespectful of the National flag needs to be intentional for it to amount to a
violation of Section 2 of the Prevention of Insults to National Honour Act,
In the case of [Ajitinder Singh Vs. State of Punjab & Ors, 2000 SCC OnLine P&H
52], the Punjab & Haryana High Court held the following:
7. Flying the National Flag on the Government vehicles does not come within any
of the categories mentioned in the aforesaid Section nor does it amount to
insult to Indian National Flag. The learned Counsel for the petitioner is not
able to draw my attention to any of the provisions of law or authority to show
that flying the National Flag on the car used by Respondent No. 5 amounts to
insult to the National Flag. A reading of Section 2 of the Prevention of Insults
to National Honour Act, 1971 does not prohibit flying of the National Flag on
the bonnet of the car. Therefore, this contention of the learned Counsel for the
petitioner is also rejected.
In [P.V. Joseph, Vs. State of Kerala, 2016 SCC OnLine Ker 11466], the Kerala
High Court held that a prosecution would be unnecessary in a case where there
was no intention on the mind of the accused person to dishonour the National
The relevant portion of the Judgement is extracted hereunder:
4. Going by the decisions noted supra, it seems that the prosecution in this
case is quite unnecessary. Apart from that, it seems that there was no intention
on the part of the petitioners to dishonour the National Flag. True that it was
an omission on their part in lowering the National Flag after the prescribed
time. The prosecution seems to be quite unnecessary and therefore, the same can
In [A. K. Viswanathan Vs. Angamali Municipality Represented by its Secretary,
2019 SCC OnLine Ker 3978], the Kerala High Court held:
13. In other words, it is indirectly admitted in the complaint that the
petitioners had no intention to insult or to show disrespect to the National
14. ….even assuming that the averment in Annexure-A1 complaint that the National
Flag lowered down by the second accused was one hoisted on the morning of
17.08.2015 on the flag post, it cannot be found that he had any intention to
insult or to show disrespect to the National Flag by lowering it down. Even as
per the averment in the complaint, the petitioners had done so on a
misunderstanding that the National Flag which was hoisted on the flag post on
the Independence Day was thereafter not lowered down.
Thus, an act would only amount to disrespecting the National Flag if it the
person committing the act has an intention of insulting or disrespecting the
Amendments To The Flag Code Of India, 2002
The Flag Code of India, 2002 was amended Vide Order dated December 30, 2021,
permitting National Flags which were machine made, or made of polyester to also
be allowed to be hoisted. Before the amendment, such Flags were not allowed to
be used and the Tricolour could only be made by hand using Khadi material.
Further, Via its order dated 19th July, 2022, the Ministry of Home Affairs also
allowed Flags to be flown during day or night. Earlier, the Tricolour could be
hoisted only between sunrise and sunset.
The Union Ministry of Home Affairs had also issued The Flag Code of India, 2002,
with the aim of regulating the usage of the National Flag. However, Courts have
consistently held that the Code is not 'law' for the purposes of restricting
one's rights under Article 19 (1)(a) of the Constitution of India. Therefore,
The Flag Code of India, 2002 is only an Executive Instruction by the Government
and is a mere Code of Conduct, violation of which does not carry any penal
consequences (as per the Supreme Court in Naveen Jindal's case, referred to
The Flag Code of India, 2002 serves as a set of Rules to safeguard the dignity
of the Indian National Flag and since it is not a law, anyone who is penalised
for breaking it will merely be booked and not held criminally responsible.
Criminal responsibility for disrespecting the National Flag can only be
attracted under statutory laws including the Prevention of Insults to National
Symbols Amendment Act, 2003 and the State Emblem of India (Prohibition of
Improper Use) Act, 2005.
Damini Singh Chauhan,
LL. B [The Law School, University of Jammu] -
LL. M [O. P. Jindal Global University].
E-mail: [email protected]