"THERE is no doubt that nationalism in a democracy like India is very vital. But, hyper and surfeit adherence to it goes against the prosperity of our nation…", the Madras High Court said on Monday, quashing a criminal complaint that alleged an insult to the nation's honour when a cake with the national flag on it was cut at a public function.
It was the case of the private complainant that on 25.12.2013, at a public function celebrating Christmas, a cake measuring 6 ft. length and 5 ft. breadth, the icing on which had the tri-colour Indian map outlined with the Ashoka Chakra in the centre, was cut, distributed and consumed by the special guests and about 2500 participants, including 1000 children. The complainant claimed that by cutting the cake 'The Prevention of Insults to National Honour Act, 1971', had been violated.
Justice N Anand Venkatesh said, "A patriot is not one who only raises the flag, symbolises his national pride and wear it on his sleeve, but also, a person who bats for good governance".
"The symbolisation of national pride is not synonymous with patriotism, just like how cutting a cake is not unpatriotic", Justice Venkatesh added.
The court was ruling on a petition filed by the state government challenging the order of the magistrate taking cognisance of a complaint filed by a private person and ordering registration of the FIR for violating Section 2 of the Prevention of Insults to National Honour Act.
The high court found the procedure adopted by the magistrate patently illegal.
"Power to direct investigation under Section 156(3), Cr.P.C. is done at the pre-cognisance stage. Therefore, once the magistrate decides to take cognisance and embarks upon the procedure stipulated under Chapter XV, Cr.P.C., he cannot revert to the pre-cognisance stage and pass orders under Section 156(3), Cr.P.C", the court said.
It also observed that the complainant did not have personal knowledge about the event that was conducted on 25.12.2013.
His only source of information, the high court noted, was newspaper reports. Besides, the witnesses examined by the magistrate were persons who were accidentally present at the venue and that too after the cake was cut, and they had had their share of the cake.
"Admittedly, in the event, there were 2500 participants, out of which 1000 were children. When such is the importance of the event, courts should satisfy itself on the correctness or the nature of the information provided by the complainant", the high court held.
Referring to a decision of the Supreme Court in Dr. B. Singh v. Union of India, it said reports in a newspaper, journal or magazine should not be taken as gospel truth, and the court has to necessarily look for materials to corroborate the authenticity and credibility of the information published in the media.
It said "intention" behind the act would be the true test to determine the insult of the national flag.
"Patriotism is not determined by a gross physical act. The intention behind the act will be the true test, and it is possible that sometimes the very act itself manifests the intention behind it", the court said.
On the facts of the present case, the court pointed out even if the entire set of facts stated in the complaint are taken as it is, it must be seen as to what would have been the actual feeling with which the participants would have dispersed after the function was over.
"Will they be feeling great pride in belonging to this great nation, or would the pride of India have come down on the mere cutting of a cake during the celebration? Without any hesitation, this court can hold that the participants would have felt only the former and not the latter", the order read.
The court also gave a hypothetical situation to buttress its point. It said on Independence Day and Republic Day celebration, the participants are provided with a national flag to be worn by them.
In reality, after the participants leave the venue on completion of the celebrations, they do not continue to possess this flag forever, and it becomes waste paper. "Will this mean that each of the participants has insulted the national flag?" the court asked.
"The obvious answer is in the negative. If persons are allowed to give such broad meaning to the word 'insult', many will become very uncomfortable and hesitant to handle the national flag.
"The National Flag is given during the function as a symbol of our national pride. Once such a feeling is created in the minds of the participants, the purpose for which the national Flag was given or used will be achieved", the court opined.
It also referred to the Flag Code, which, provides a mechanism to destroy flags in private, in a manner consistent with the dignity of the flag, and as a responsible citizen, it should be followed in letter and spirit.
"Not all will be aware of this procedure, and therefore, that by itself will not make them susceptible to committing an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971", the court said.
It clarified that it had ventured to give such an extreme illustration only to drive home the point that a wayfarer, for the mere sake of publicity, should not be allowed to expose people to criminal prosecution for some innocuous acts which by themselves would not have construed to be an insult, to make it an offence under Section 2 of the Act.
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