Flying the National Flag is Fundamental Right

Source: Kerala High Court   

Why in News? 

Recently, Dr. Justice Kauser Edappagath held that unintentional failure to lower the National Flag after sunset does not constitute an offence under the Prevention of Insults to National Honour Act, 1971, in the absence of deliberate intent or mens rea. 

• The  Kerala High Court  held this in the matter of Vinu C. Kunjappan v. State of Kerala (2025). 

What was the Background of Vinu C. Kunjappan v. State of Kerala (2025) Case ? 

• The petitioner was working as the Secretary of Angamaly Municipality in 2015. During the Independence Day celebrations that year, he was responsible for hoisting the National Flag at the municipal office. 
• On Independence Day 2015, the National Flag was hoisted as part of the official celebrations. However, the flag remained flying for nearly two days after it was hoisted, continuing until noon two days later, without being lowered after sunset as required by protocol. 
• The Angamaly Police Station registered a suo motu FIR (First Information Report) against the petitioner, meaning the police initiated the case on their own without any complaint being filed. The case was filed under Section 2(a) of the Prevention of Insults to National Honour Act, 1971, read together with Part-III, Section III, Rule 3.6 of the Flag Code of India, 2002. 
• The petitioner was accused of committing an offence by failing to lower the National Flag after sunset, which was alleged to be a violation of the Prevention of Insults to National Honour Act, 1971, and the Flag Code of India, 2002. 
• After the police filed their Final Report in the case, the magistrate court took cognizance of the matter, meaning the court officially recognized the case and decided to proceed with it. Faced with criminal proceedings, the petitioner approached the Kerala High Court seeking to quash (cancel) the case against him. 

What were the Court’s Observations? 

• The Court observed that merely failing to lower the National Flag after sunset cannot be considered an act that shows gross disrespect or insult to the National Flag.  
• The Court emphasized that unless there is deliberate action with clear intention to insult national honour or show disrespect to the National Flag, the provisions of the Prevention of Insults to National Honour Act, 1971 cannot be applied. 
• The Court noted that there was no evidence to show that the petitioner had any criminal intention (mens rea) to show disrespect to the National Flag or to undermine the sovereignty of the nation. The Court found that the petitioner's failure to lower the flag was due to oversight or negligence, not deliberate disrespect. 
• The Court acknowledged that the right to fly the National Flag with respect and dignity is a fundamental right guaranteed under Article 19(1)(a) of the Constitution of of India, but this right is subject to reasonable restrictions under Article 19(2). 
• The Court examined Section 2 and its Explanation 4 under the 1971 Act and found that the specific act of not lowering the flag after sunset is not explicitly mentioned as an offence under this provision. Since there was no evidence that the petitioner had shown "gross affront or indignity or insult to the National Flag" as defined in Explanation 4, the Court concluded that no offence under the Act was established. 
• The Court made a significant observation that the Flag Code of 2002 contains executive instructions from the Central Government and therefore does not constitute "law" within the meaning of Article 13(3)(a) of the Constitution of India. The Court stated that while the Flag Code is a mandatory code of conduct for all Indian citizens, penal consequences cannot be imposed unless there is a specific statutory provision authorizing such punishment. 

Why is Flying the National Flag Considered a Fundamental Right Under Article 19(1)(a) of the Constitution? 

• Constitutional Right: Flying the National Flag with respect is a fundamental right under Article 19(1)(a) as part of freedom of speech and expression. 
• Symbolic Expression: It is a form of non-verbal, symbolic speech showing patriotism, pride, and national allegiance. 
• Qualified Right: This right is not absolute and is subject to reasonable restrictions under Article 19(2) for public order, morality, and national dignity. 
• Limits on Use: Disrespectful or commercial use of the flag is not protected. 
• Flag Code Status: The Flag Code is not a law but only executive instructions and cannot restrict fundamental rights. 
• Statutory Regulation: Use of the flag is regulated by the 1950 and 1971 Acts to prevent misuse and insult. 
• Duty and Protection: Citizens have a fundamental duty (Article 51-A) to respect the flag, and courts protect this right while upholding its dignity.