Is Failing to Lower the Indian Flag After Sunset a Crime? Kerala High Court Clarifies the Legal Status of the Flag Code of India, 2002

An illustration of such a case was the Vinu C. Kunjappan v. The case of State of Kerala and a case that the High Court of Kerala heard has a critical character of going into interpretation of the Prevention of Insults to National Honour Act, 1971. The issue addressed in the case is based upon the petitioner, Vinu C. Kunjappan, who had been accused of violating the National Flag by failing to reduce the flag after sunset. This decision enlightens the issue very well on what exactly an insult to the National Flag under the law means and the differentiation between a misstep and a conscious disrespect. The ruling of the court indicates why it must establish the existence of the intent and adds emphasis to the difference between what shall legally hold and what is suggestive or administrative wherein the Flag Code of India, 2002 is concerned.

The Case Factual Background

The petitioner, Vinu C. Kunjappan was the Secretary of the Angamaly Municipality. This was done in his presence, on the Independence Day of 2015 when the National Flag was raised in the compound of the municipality. The accusations of the prosecution related to the flag being lowered only at noon on August 17, 2015. In that light, the Station House Officer of the Angamaly Police Station took an action in that regard and filed a suo motu FIR which resulted in filing of final report before the trial court. The Judicial First Class Magistrate Court, Angamaly, trial court, took cognizance of such an offense and the case was numbered as C.C. No. 410/2016. The offence against Kunjappan was under Section 2(a) of the Prevention of Insults to Notice HonourAct 1971 read with Part-III, Section III, Rule 3.6 of the Flag code of India, 2002. The petitioner wanted to quash the proceedings on the basis that had the allegations been proved against him, then they were not an offense.

The law with Respect to Supply of Information in Question

The essence of the legal case was dwelt in the provisions of section 2 of the Prevention of Insults to National Honour Act, 1971 and the Flag Code of India, 2002. The Act in Section 2 provides what one can do that can amount to an offence of insulting the Indian National flag- burn it, tear it, disfigure it or destroy it in any place open to the public. This court scrupulously read the text of Section 2 and the four explanations. Explanation 4 of the Act gives such particular examples as a gross affront or indignity to the flag, flying the flag at half mast on non-authorized days or using the flag as drapery. This case was used by the prosecution on the hypothesis that it is disrespectful to leave the flag up after sunset.

The law with Respect to Supply of Information in Question

The essence of the legal case was dwelt in the provisions of section 2 of the Prevention of Insults to National Honour Act, 1971 and the Flag Code of India, 2002. The Act in Section 2 provides what one can do that can amount to an offence of insulting the Indian National flag- burn it, tear it, disfigure it or destroy it in any place open to the public. This court scrupulously read the text of Section 2 and the four explanations. Explanation 4 of the Act gives such particular examples as a gross affront or indignity to the flag, flying the flag at half mast on non-authorized days or using the flag as drapery. This case was used by the prosecution on the hypothesis that it is disrespectful to leave the flag up after sunset.

Mens Rea as Important

The ruling that is reached by the court is dependent on the application of the concept of

Or the guilty mind, mens rea. According to the court, the provisions of the 1971 Act cannot be applied to relate to cases involving other activities unless there is a deliberate act with an intention to insult the national honour or show disrespect to the National Flag. There was no material or evidence before the court that displayed that the petitioner intended to disregard the image of the flag or compromise the nation state sovereignty. Depending on such an element of intent, the mere failure to lower the flag, even though it contravenes a provision in the Flag Code, is not sufficient to cross the criminal threshold Under the Act.

Outcome

The High Courts of Kerala based on its detailed perusal came to a conclusion that even supposing every allegation made by the prosecution were true, still the said allegations could not at all be an offense under Section 2(a) of the Prevention of Insults to National Honour Act, 1971. The court held that it would not be of any use in letting the criminal prosecution against the petitioner continue. Thus, the final report and any other future action against Vinu C. Kunjappan was quashed. A ruling by the court in a case in Vinu C. Kunjappan v. State of Kerala is a relevant precedent in as far as it holds that a criminal charge of disrespecting the National Flag will only be made out upon clear proof of intention on the part of the accused and in breach of specific and statutorily defined actions but not where there is a breach of non-binding executive directions contained in Flag Code. This ruling avoids any possibility of punishing citizens due to lapses of seriousness in not giving full disrespect to national symbols as compared to acts of disrespect by national symbols that are partly intentional.