In a ruling that sets the record straight on patriotic protocol, the Kerala High Court has held that leaving the Indian National Flag flying past sunset isn’t a criminal offence unless done with a clear intent to insult the nation’s honour.
The judgment came in response to a case against Vinu C Kunjappan, a former municipal secretary, who found himself the target of criminal proceedings for allegedly dishonouring the flag. His offence? Not lowering the tricolour after Independence Day celebrations in 2015. The flag reportedly stayed up at the Angamaly Municipality compound until noon on August 17—almost two days later.
Police didn’t take it lightly, registering a suo motu FIR under the Prevention of Insults to National Honour Act, 1971, clubbed with an alleged violation of the Flag Code of India, 2002. But the High Court called time on the prosecution’s overreach.
Justice Kauser Edappagath, delivering the verdict, pointed out that Section 2 of the 1971 Act punishes acts like burning, defacing or mutilating the flag—actions that unmistakably reek of disrespect. Simply forgetting to lower the flag, however, doesn’t meet the bar unless there is proof of a wilful act meant to insult.
“No intention, no insult,” the Court essentially held. In the absence of mens rea—criminal intent—the accused’s lapse did not constitute a crime. Notably, the Flag Code of India, 2002, was also addressed. The Court reiterated that the Code, while binding as a model code of conduct, doesn’t hold the force of law under Article 13(3)(a) of the Constitution. Which means, disobeying it might warrant a reprimand, but not handcuffs.
“There is no material to show that the petitioner had any intent to show disrespect to the National Flag or to undermine national sovereignty,” the order stated. Without a statutory provision prescribing punishment, there can be no penal consequence for mere non-compliance with the executive instructions of the Flag Code.
In conclusion, the Court quashed the final police report and all subsequent proceedings pending before the lower court, bringing much-needed clarity to a matter where patriotism was mistaken for protocol.
A team of lawyers led by S Rajeev defended the petitioner, while the State was represented by Public Prosecutor Sangeetha Raj NR.
