Act Of Leaving National Flag In Hoisted Position Not An Offence

Background of the Case

• The title of the case is Gaurishankar Garg & Another v. The State of M.P.
• The Madhya Pradesh High Court was hearing a S.482 CrPC application seeking to quash an FIR filed against the petitioners, alleging a violation of Section 2 of the Prevention of Insults to National Honour Act, 1971.
• On August 16, 2017, it was discovered that the national flag was hoisted in the compound of Balaji ITI College, Sabhalgarh, until 8.30 p.m.
• As a result, the petitioners were said to be responsible for an intentional insult to the national flag, and an FIR was filed against them.

Contentions before the Court

• The Petitioner's counsel argued that even if the allegations in the FIR are taken to be accurate, they still do not constitute an offence because the alleged act of hoisting and then lowering the national flag at approximately 8.30 p.m., i.e., during the period between sunset and sunrise, does not fall squarely within Section 2 of the 1971 Act.
• The respondents, on the other hand, argued that Section 2 of the 1971 Act had to be read in conjunction with the clause mentioned above of Section 2(2.2) (xi) of the Flag Code and that it was, therefore, evident that the petitioners had committed the offence punishable under Section 2 of the 1971 Act.
• Observation of the Court
• The MP High Court observed that Section 2 of the 1971 Act is attracted when a person is found in a public place within public view burning, mutilating, defiling, disfiguring, destroying, trampling upon, or otherwise bringing into contempt the Indian National Flag by words spoken or written or by an act.
• As a result, the Court concluded that the petitioners' actions do not squarely fall within Section 2 of the 1971 Act.
• Regarding the Flag Code, the Court stated that it is not "law" as defined in Article 13 of the Indian Constitution, but rather a collection of executive orders, and thus lacks statutory force and cannot be used to prosecute anyone.
• While referring to Clause 2(2.2) (xi) of the Flag Code, the Court read that "Where the Flag is displayed in open, it should, as far as possible, be flown from sunrise to sunset, irrespective of weather conditions".

Conclusion

• The Madhya Pradesh High Court Bench, led by Justice S. A. Dharmadhikari, stated that while leaving the National Flag hoisted after sunset may be an act of deliberate or inadvertent forgetfulness, misconduct, it cannot be considered contemptuous.
• Because the Flag Code is merely a set of instructions with no legal force, it was decided that flying the National Flag between sunset and sunrise is not prohibited by law.
• The Court also noted that the Flag Code only states that the National Flag should "as far as possible" be flown between sunrise and sunset; this doesn't imply that it is prohibited by law to be flown between sunset and sunrise.
• Hence, the Court dismissed the FIR filed against the petitioners.

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