Mere Non-Lowering Of Indian Flag After Sunset Not An Offence, But Violation Of Flag Code: Kerala High Court

The Kerala High Court recently quashed the criminal proceedings initiated against a person for failing to lower the National Flag for almost 2 days after hoisting it during an Independence day celebration.

Dr. Justice Kauser Edappagath considered whether offences under Section 2(a) of the Prevention of Insults to National Honour Act, 1971, read with Part-III, Section III, Rule 3.6 of the Flag Code of India, 2002 were made out in the case.

The judge observed:

"Mere lapse or inaction on the part of a person in not lowering the flown National Flag after sunset cannot be said to be an act of gross affront or indignity, or insult to the National Flag. Unless there is a deliberate action with an intention to insult the national honour or show disrespect to the National Flag, the provisions of the Act of 1971 cannot be attracted. In the absence of any intention on the part of the petitioner in deliberately not lowering the National Flag after sunset, the said act cannot be said to be one showing insult or disrespect to the National Flag. There is no material to show mens rea on the part of the petitioner to show disrespect to the National Flag and thereby to undermine sovereignty of the nation."

The petitioner in the present case was working as the Secretary of Angamaly Municipality and during the independence day celebration in 2015, the National flag was hoisted and remained so until noon, two days later. A suo motu FIR was registered by the Angamaly Police Station and magistrate court took cognizance upon filing of Final Report in the case. Thus, the petitioner approached the High Court seeking to quash the case against him.

The Court observed 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 but it is subjected to the reasonable restrictions under clause (2).

It also looked into Section 2 and its Explanation 4 under the 1971 Act and found that the act of not lowering the flag after sunset is not provided under the same.

Since there was no case that the petitioner had shown "gross affront or indignity or insult to the National Flag" as per Explanation 4, the Court felt that the offence under the Act do not stand.

With respect to the Flag Code, the Court made the following observation:

"Flag Code, 2002 contains executive instructions of the Central Government and, therefore, it is not a law within the meaning of Article 13(3)(a) of the Constitution of India. It is a model code of conduct to be followed compulsorily by all the citizens of India. Penal consequences cannot be invoked unless there is a statutory provision for the same..."

Thus, it allowed the petition and quashed the proceedings.

Case No: Crl.M.C. No.9251/2019

Case Title: Vinu C. Kunjappan v. State of Kerala

Citation: 2025 LiveLaw (Ker) 480

Counsel for the petitioner: S. Rajeev, K.K. Dheerendrakrishnan, V. Vinay, D. Feroze, Anand Kalyanakrishnan

Counsel for the respondent: Sangeetha Raj N.R. - PP

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