Observing that a question of fact whether a person insulted the national flag (NF) and violated Flag Code 2002 could not be gone into in writ proceedings, the Supreme Court has declined to entertain a writ petition seeking a direction to initiate action against social activist Anna Hazare, Yoga guru Baba Ramdev, Kiran Bedi and others.

Dismissing a petition filed by V.K. Naswa, a Bench of Justices B.S. Chauhan and Swatanter Kumar said: “It is evident from a reading of the Flag Code that there is no restriction on the display of NF by members of the general public, private organisations and educational institutions except to the extent provided in the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971.”

Benediction, beckoning

Though the Code was not the law, it provided guidelines to be observed for preserving the dignity of and respect to the flag. “The NF is both a benediction and beckoning. Thus, in a case a person shows any kind of disrespect to the NF or does not observe the terms contained in the Code, legal action may be taken against him under the relevant statutory provisions. However, these are questions of facts as to whether on a particular event a particular person has shown any kind of disrespect to the NF.”

Limited role for court

The Bench said: “The courts cannot usurp the functions assigned to the Executive under the Constitution and cannot even indirectly require the Executive to exercise its law-making power in any manner. The courts cannot assume to themselves a supervisory role over the rule-making power of the Executive under Article 309.”

The Bench said: “The court has a very limited role and in exercise of that it is not open to have judicial legislation.” The court could neither legislate, nor did have “any competence to issue directions to the legislature to enact the law in a particular manner.”

The petitioner alleged that Baba Ramdev had on several occasions insulted the flag for gaining undue mileage, benefiting his yoga business as well as to derive political gain during agitations. Similarly, Mr. Hazare and others had allegedly insulted the flag for drawing political mileage during agitations. So they should be directed to pay Rs. 10 lakh each to the Prime Minister's Relief Fund.

Rejecting the plea, the Bench pointed out that the petitioner had also filed separate complaints against the persons concerned before authorities. He could not pursue the remedy simultaneously by filing the writ petition and on that ground alone it was liable to be dismissed.


Flagging India’s missing freedomSeptember 29, 2012

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