Not Lowering National Flag After Sunset Doesn't Amount To Disrespecting It: Kerala High Court Quashes Case Against Municipal Secretary

The Kerala High Court, while quashing a case against a Municipal Secretary for not lowering the flag after sunset, has observed that it doesn't fall within the ambit of "disrespecting" it.

The Court was considering a Petition seeking quashing of proceedings initiated against the Petitioner for offences punishable 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.

The Bench of Justice Kauser Edappagath observed, "....The act of not lowering the National Flag after sunset does not fall within any of the acts mentioned in Section 2 or various instances mentioned in Explanation 4 . Sub-clause (a) of Explanation 4 gets attracted in a case where a gross affront or indignity is offered to the Indian National Flag. The prosecution has no case that by not lowering the National Flag, the petitioner had offered a gross affront or indignity to the Indian National Flag. 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."

The Petitioner was represented by Advocate S. Rajeev, while the Respondent was represented by the Public Prosecutor.

Facts of the Case

The Petitioner was working as the Secretary of Angamaly Municipality. The prosecution alleged that on Independence Day in the year 2015, the National Flag was hoisted in the compound in the presence of the Petitioner, and it was not lowered till noon of August 17, 2015. A suo-moto FIR was registered and later Trial Court took cognizance of the offences and a case was thus registered.

The Petitioner sought quashing of the said proceedings on the ground that the allegations in the final report, even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against him.

Reasoning By Court

The Court at the outset observed that the fundamental right to fly the National Flag is not absolute but a qualified one, being subject to reasonable restrictions under Clause (2) of Article 19 of the Constitution of India.

"To attract the offence under Section 2 of the Act of 1971, a person should burn, mutilate, deface, defile, disfigure, destroy, trample upon or otherwise show disrespect to or bring into contempt, the Indian National Flag or the Constitution of India or any part thereof, in any public place or in any other place within public view. Explanation 4 gives various instances of disrespect to the National Flag", the Court observed, holding that not lowering it unintentionally after sunset doesn't amount to it.

It thus concluded that 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. 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", the Court observed.

The Petition was accordingly allowed.

Cause Title: Vinu C Kunjappan vs. The State Of Kerala, 2025:KER:56179

Appearances:

Petitioner- Advocate S. Rajeev, Advocate K.K. Dheerendrakrishnan, Advocate V. Vinay, Advocate D. Feroze, Advocate Kalyanakrishnan

Respondent- Public Prosecutor

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