Tricolour Left Flying After Sunset? Not a Crime, Says Kerala High Court

The bench of Justice Dr. Kauser Edappagath delivered the verdict on a petition filed by Vinu C Kunjappan, the then Secretary of Angamaly Municipality, who had been booked 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.

On August 15, 2015, the National Flag was hoisted at the Angamaly Municipality premises to mark Independence Day. According to the prosecution, the flag remained hoisted until noon on August 17, well beyond the prescribed time under the Flag Code, which states the flag must be lowered at sunset. A suo motu First Information Report was filed by the Angamaly police, and the accused was later summoned by the Judicial First Class Magistrate, Angamaly.

However, Kunjappan challenged the proceedings, arguing that even if the allegations were taken at face value, no offence had been committed under the law. The High Court agreed.

Referring to constitutional provisions, Justice Edappagath noted that the right to fly the National Flag is a fundamental right under Article 19(1)(a) of the Constitution, but it is subject to reasonable restrictions. Court underscored that penal consequences cannot arise from executive instructions unless they are backed by statutory authority.

Crucially, court found that the act of not lowering the flag after sunset does not fall within the categories of “disrespect” listed under Section 2 of the 1971 Act. The provision criminalises acts such as burning, mutilating, defacing, or trampling upon the National Flag, but does not cover mere oversight or procedural lapses.

Further, court added, "Unless there is a deliberate action with an intention to insult the national honour or show disrespec to the National Flag, the provisions of the Act of 1971 cannot be attracted".

"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 order stated. It further held that the Flag Code, being a set of executive instructions, is not a “law” as per Article 13(3)(a) of the Constitution and cannot be used to impose criminal liability.

The high court concluded that continuing the prosecution would serve no purpose and would amount to an abuse of the legal process. Accordingly, it quashed the final report and all related proceedings before the trial court.