Allowed

Nitin Kishor Kalunkhe v. the Union of India and Anr.

Bombay HC17 Jun 2014WP/1699/2012

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay implicitly allowed a writ petition seeking directions for preventing insult to the National Flag, citing prior Supreme Court directions in Union of India v. Naveen Jindal as rendering the current matter unnecessary for disposal.

What did the court decide?

Writ Petition stands disposed of as the issue has already been addressed by the Supreme Court.

Nitin Kishor Kalunkhe Vs the Union of… — Constitutional and Fundamental Rights | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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WRIT PETITION NO.1699/2012

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Nitin Kishor Kalunkhe

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.. Petitioner

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Versus

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1] The Union of India

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2] The State of Maharashtra

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.. Respondents

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Mr.Vinod P.Patil,Adv.for petitioner Mr.Alok Sharma,,ASP for R.1. Mrs.S.G.Chincholkar,AGP.for Respondent State

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CORAM : R.M.BORDE & V.L.ACHLIYA,JJ. DATED: 17th June, 2014

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PER COURT :-

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The petitioner is seeking direction to the respondents for introduction of some scheme so as to prevent insult to the National Flag. The petitioner also prays for initiation of appropriate legal action against print media and against the

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individuals who indulge in such act which amounts to causing insult to the National Flag. Direction is also sought for enforcement of Prevention of Insult to National Honour Act, 1971 and the Act 2013.

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2] The issues raised in the instant petition are answered by Hon'ble Supreme Court in the matter of Union of India V/s Naveen Jindal reported in 2004 (0) BCI 166 and appropriate directions have already been issued. It would be appropriate to refer to the observations of Supreme Court in the aforesaid matter in para 81,82(13),83 and 84 of the judgment. It reads thus :

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“81] This Court directed that the recommendations of the said Committee should be considered by the Central Government in the right earnest and to take appropriate steps for the implementation thereof. The right to fly the National Flag is a fundamental right but subject to restrictions. The right is not unfettered, unsubscribed, unrestricted and unchannelled one. Even assertion of the right to respectfully fly the flag vis-a-vis the mere right to fly the flag is regulated and controlled by two significant

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parliamentary enactments, namely, the Emblems and Names [Prevention of Improper Use] Act, 1950 and the Prevention of Insults to National Honour Act, 1971.

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82(13)] Having regard to the fact that it has been stated in the letter dated 15/12/2000 that the writer thereof is not aware of the name(s) of the person(s) manufacturing the same, we direct the state and in particular the District Collector and the Superintendent of Police, Nalgonda District to take steps to conduct investigation with regard to the misuse of the National Flag and see to it that the offenders are brought to book. Let a copy of this order be sent to the Chief Secretary to the Government of Andhra Pradesh so that necessary directions to all concerned may be issued so as to prevent such misuse of the Indian National Flag. Accordingly, we dispose of this writ petition. No costs.

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83] We, however, hope and trust that the Parliament, keeping in view the importance of

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the question involved in this matter, shall make a suitable enactment for the aforementioned purpose.

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84] For the aforesaid reason, we hold that - (I) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1) (a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation; (ii) The fundamental right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under clause 2 of Article 19 of the Constitution of India; (iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of the National Flag; (iv) Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution of India for the purpose of clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying the national flag. However, the

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Flag Code to the extent it provides for preserving respect and dignity of the National Flag, the same deserves to be followed. (v) For the purpose of interpretation of the constitutional scheme and for the purpose of maintaining a balance between the fundamental/legal rights of a citizen vis-i-vis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India can be taken recourse to.”

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3] In view of the decision rendered by Hon'ble Supreme Court quoted as above, nothing survives for consideration in the Petition. Writ Petition stands disposed of.

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[V.L.ACHLIYA,J.]

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[R.M.BORDE,J.]

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umg

Nitin Kishor Kalunkhe v. the Union of India and Anr.

Case brief

What is this about?

What did the court decide?

Nitin Kishor Kalunkhe v. the Union of India and Anr.

Case brief

What is this about?

What did the court decide?

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