Whether the Flag Code of India is law or not
Government of India, Ministry of Home Affairs, New Delhi has published Flag Code of India, 2002, which has come in force w.e.f. 26/01/2002. Part-I of the Code lays down as under:
1.1. The National Flag shall be a tri-colour panel made up for three rectangular panels or sub-panels of equal widths. The colour of the top panel shall be India saffron (Kesari) and that of the. bottom panel shall be India green. The middle panel shall be white, bearing at its center the design of Ashoka Chakra in navy blue colour with 24 equally spaced spokes. The Ashoka Chakra shall preferably be screen printed or otherwise printed or stenciled or suitably embroidered and shall be completely visible on both sides of the Flag in the centre of the white panel.
1.2 The National Flag of India shall be made of hand spun and hand woven wool/cotton/silk Khadi bunting.
1.3 The National Flag shall be rectangular in shape. The ratio of the length of the height (width) of the Flag shall be 3:2.
1.4 The standard sizes of the National Flag shall be as follows .-
Flag Size No.
Dimensions in mm
1 6300 x 4200
2 3600 x 2400
3 2700 x 1800
4 1800 x 1200
5 1350 x 900
6 900 x 600
7 450 x 300
8 225 x 150
9 150 x 100
1.5 An appropriate size should be chosen for display. The flags of 450 x 300 mm size are intended for aircrafts on WIP flights, 225 x 150 mm size for motor cars and 150 x 100 mm size for table flags.
9. Section-V of the Code deals with Misuse of the Flag, which reads as under:
3.22 The Flag shall not be used as a drapery in any form whatsoever except in State/Military/Central Paramilitary Forces funerals hereinafter provided.
3.23 The Flag shall not he draped over the hood, top, sides or back of a vehicle train or boat.
3.24 The Flag shall not be used or stored in such a manner as may damage or soil it.
3.25 When the Flag is in a damaged or soiled condition, it shall not be cast aside or disrespectfully disposed of but shall be destroyed as a whole in private, preferably by burning or by any other method consistent with the dignity of the Flag.
3.26 The Flag shall not be used as a covering for a building.
3.27 The Flag shall not be used as a portion of a costume or uniform of any description. It shall not be embroidered or printed upon cushions, handkerchiefs, napkins or boxes.
3.28 Lettering of any kind shall not be put upon the Flag.
3.29 The Flag shall not be used in any form of advertisement nor shall an advertising sign be fastened to the pole from which the Flag is flown.
3.30 The Flag shall not be used as a receptacle for receiving, delivering, holding or carrying anything:
Provided that there shall be no objection to keeping flower petals inside the Flag before it is unfurled, as part of celebrations on special occasions and on National Days like the Republic Day and the Independence Day.
10. Chapter-XI of the deals with Half-Masting. Clause 3.58 deals with the occasions when the Flag can be used in funerals, which reads as under:
On occasions of State/Military/Central Para-Military. Forces funerals, the Flag shall be draped over the bier or coffin with the saffron towards the head of the bier or coffin. The Flag shall not be lowered into the grave or burnt in the pyre.
Whether the Flag Code of India is law or not has been considered by the Hon’ble Apex Court in the matter of Union of India (UOI) Vs. Naveen Jindal and Another, wherein Hon’ble Apex Court held as under:
In the context of the present case a question arose whether Flag Code is “law”? Flag Code concededly contains the executive instructions of the Central Government. It is stated that for the Ministry of Home Affairs, winch is competent to issue them, the instructions contained in the Flag Code and all matters relating thereto are one of the items of business allocated to the said Ministry by the President under the Government of India (Allocation of Business) Rules, 1961 framed in terms of Article 77 of the Constitution of India. A bare perusal of Article 13(3)(a) would clearly go to show that executive instructions would not fall within the aforementioned category. Such executive instructions may have the force of law for some other purposes; as for example, those instructions which are issued as a supplement to the legislative power in terms of Clause (1) of Article 77 of the Constitution of India. The necessity as regards determination of the said question has arisen as Parliament has not chosen to enact a statute which would confer at least a statutory right upon a citizen of India to fly the National Flag. An executive instruction issued by the Appellant herein can any time be replaced by another set of executive instructions and thus deprive Indian citizens from flying National Flag. Furthermore, such a question will also arise in the event if it be held that right to fly the National Flag is a fundamental or a natural right within the meaning of Article 19 of the Constitution of India; as for the purpose of regulating the exercise of right of freedom guaranteed under Articles 19(1)(a) to (e) and (g) a law must be made. Flag Code is not a statute; thereby the fundamental right under Article 19(1)(a) is followed to the extent it provides for preservation of dignity and respect for the National Flag. The right to fly the National Flag is not an absolute right. The freedom of expression for the purpose of giving a feeling of nationalism and for that purpose all that is required to be done is that the duty to respect the Flag must be strictly obeyed. The pride of a person involved in flying the Flag is the pride to be an Indian and that, thus, in all respects respect to it must be shown. The State may not tolerate even the slightest disrespect.
In the matter of Karan Johar v. Union of India, (2003) 8 SCC 717 wherein this Court directed in public interest litigation that the film Kabhi Kushi Kabhi Gham shall not be shown in any theatre unless the scene which depicts the national anthem is deleted and it was further directed to withdraw the film from all cinema halls and the theatre-owners are restrained from showing the film in its present form and to withdraw the certificate unless deletion is effected, Hon’ble Apex Court also observed that the national anthem exhibited in the course of exhibition of newsreel or documentary or in a film, the audience is not expected to stand as the same interrupts the exhibition of the film and would create disorder and confusion, rather than add to the dignity of the national anthem. The order passed by this Court was suspended by the Hon’ble Apex Court Vide judgment dated 19/04/04 reported in Karan Johar Vs. Union of India (UOI) and Others, in the same matter the Hon’ble Apex Court has observed that in view of the instructions issued by the Government of India that the national anthem is exhibited in course of the exhibition of a newsreel or documentary, the audience is not expected to stand, as the same would cause disorder and confusion rather than add to the dignity of the National Anthem. The appeal is allowed.
In the matter of Ganesh Lal Bathri v. State of M.P. Reported in 2003(2) JLJ 296 wherein this Court in a case where there was a bona fide mistake in tying the national Flag in reverse position held that no case for trial is made out and the accused is entitled to be discharged.
From perusal of the photographs of coffins which has been produced by the Petitioner from the magazine ‘India Today’ it appears that the coffins were wrapped by the flag. The saffron side of the flag was used horizontally, while as per Clause 3.58 of the Code it ought to have been vertically towards head side of the coffin. Since the Hon’ble Supreme Court has held in so many words that the flag code is not a statute and the certificate was issued by the Central Board of Film Certification to the Petitioner under the Provisions of Cinematography Act, 1952 and complainant does not disclose any of the ingredients of Section 2 of Prevention of Insult to National Honour Act, 1971, this Court is of the view that the learned Trial Court committed error in taking cognizance against the Petitioner. It will not be out of place to mentioned that neither in the complaint nor in the evidence adduced by the Respondent none of the ingredients of Section 2 of the Act has been pleaded or proved, so that it can be said that, Respondent has committed an offence. It is true that the demonstration of the Flag in the said film is not in accordance with clause 3.58 of Chapter XI of the Flag Code of, India, 2002. However since the Flag Code of India is not having force of law and there is nothing on record to show the displaying of the flag was to insult the Flag intentionally