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V.K Naswa v. Home Secretary, Union Of India And Others
Factual and Procedural Background
The petitioner, appearing in person, invoked Article 32 of the Constitution to complain that several public figures—Yog Guru Baba Ramdev, Shri Anna Hazare, Mrs. Kiran Bedi and others—had allegedly insulted the National Flag of India and violated the Flag Code of India, 2002 while leading public agitations. He sought two principal remedies:
- Recovery of Rs 10 crore each from Baba Ramdev and from the group comprising Shri Anna Hazare, Mrs. Kiran Bedi and others, the sums to be credited to public funds for their alleged misuse of the flag for commercial or political mileage; and
- A writ directing the Union Government, through the Ministry of Law and Justice, either to amend the Flag Code of India, 2002 in terms suggested by him or, in the alternative, the Court itself to issue appropriate directions.
During the hearing the petitioner informed the Court that he had already lodged criminal complaints with the police regarding the same alleged incidents. The matter therefore came before the Supreme Court solely on the writ petition, with no appearances recorded on behalf of the respondents.
Legal Issues Presented
- Whether, in the face of pending criminal complaints, a writ petition under Article 32 is maintainable to adjudicate factual allegations of disrespect to the National Flag.
- Whether this Court can grant monetary reliefs (damages/penalties) against private individuals for alleged flag misuse in a writ proceeding.
- Whether the Supreme Court can direct the Union Legislature or Executive to amend the Flag Code of India, 2002, or itself frame binding guidelines amounting to legislation.
Arguments of the Parties
Petitioner's Arguments
- The respondents repeatedly violated the Flag Code and thereby insulted the National Flag during public agitations.
- They derived commercial and political benefit from such misuse and should be directed to compensate the public exchequer.
- The existing Flag Code is inadequate; hence the Court should either mandate amendments through the Ministry of Law and Justice or directly issue new guidelines.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. Naveen Jindal (2004) 2 SCC 510 | Flag Code is not “law” under Article 13; individual right to fly the National Flag is a fundamental right subject to statutory restrictions. | Reiterated that disrespect allegations are factual; remedies lie under relevant penal statutes, not Article 32. |
| Mallikarjuna Rao v. State of A.P. (1990) 2 SCC 707 | Court cannot compel the executive to exercise law-making power. | Cited to refuse directions requiring government to amend the Flag Code. |
| V.K. Sood v. Deptt. of Civil Aviation 1993 Supp (3) SCC 9 | Same principle as above—no indirect compulsion on executive’s legislative discretion. | Bolstered rejection of legislative directions. |
| Narinder Chand Hem Raj v. U.T. H.P. (1971) 2 SCC 747 | Legislative power can be exercised only by the legislature or its delegate. | Used to emphasise separation of powers. |
| State of H.P. v. Parent of a Student of Medical College (1985) 3 SCC 169 | Courts should not indirectly compel the State to legislate. | Applied to reject petitioner’s prayer for compulsory amendment against ragging-type analogy. |
| Asif Hameed v. State of J&K 1989 Supp (2) SCC 364 | Court cannot direct or advise executive on policy matters. | Supported refusal to issue “advisory sermons” to Government. |
| Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323 | Court cannot rewrite or enlarge legislation. | Relied on to decline framing of new flag guidelines by judicial order. |
| Ajaib Singh v. Sirhind Coop. … (1999) 6 SCC 82 | Court cannot create limitation periods or fill legislative gaps. | Illustrated limits on judicial law-making. |
| Union of India v. Association for Democratic Reforms (2002) 5 SCC 294 | Court may not direct legislature to amend Acts/Rules. | Applied to flag-code context. |
| District Mining Officer v. TISCO (2001) 7 SCC 358 | Function of court is to expound, not legislate. | Cited in same vein. |
| Supreme Court Employees’ Welfare Assn. v. Union of India (1989) 4 SCC 187 | Courts cannot direct enactment of legislation. | Reinforced separation of powers. |
| State of J&K v. A.R. Zakki 1992 Supp (1) SCC 548 | Parliament holds sovereign law-making power. | Quoted to show Court’s lack of competence to order amendments. |
| Union of India v. Prakash P. Hinduja (2003) 6 SCC 195 | Non-compliance with judicial directions amounting to legislation does not constitute contempt. | Highlighted inherent invalidity of such directions. |
| University of Kerala v. Council of Principals (2010) 1 SCC 353 | Comprehensive discussion on separation of powers and invalidity of judicial legislation. | Relied upon as latest authority affirming limited judicial role. |
| State of U.P. v. Jeet S. Bisht (2007) 6 SCC 586 | Court cannot amend law; such directions amount to legislation. | Further authority for declining relief. |
| Delhi Jal Board v. National Campaign … (2011) 8 SCC 568 | In exceptional legislative vacuum courts may frame guidelines. | Cited but distinguished; Flag Code already exists, so no vacuum. |
| Vishaka v. State of Rajasthan (1997) 6 SCC 241 | Illustration of exceptional judicial guidelines where no statute existed. | Mentioned to contrast with present case. |
| Common Cause v. Union of India (2008) 5 SCC 511 | Same exceptional-circumstance principle. | Referenced but not applied. |
| Destruction of Public & Private Properties v. State of A.P. (2009) 5 SCC 212 | Another example of interim judicial guidelines. | Again distinguished. |
Court's Reasoning and Analysis
The Bench first referred to Union of India v. Naveen Jindal to restate that the Flag Code, 2002 is only a set of executive instructions, not “law” under Article 13, though respect for the National Flag is protected by the Prevention of Insults to National Honour Act, 1971. Allegations of disrespect therefore present disputed questions of fact best investigated through the statutory criminal process, which the petitioner had already invoked via police complaints. Parallel pursuit of a constitutional writ was held impermissible.
Turning to the petitioner’s core prayer for legislative amendment of the Flag Code, the Court conducted an exhaustive survey of case-law affirming the doctrine of separation of powers. Relying on precedent from Mallikarjuna Rao to University of Kerala cases, it reiterated that:
- The judiciary has no authority to legislate or to compel the executive or legislature to enact, amend or frame rules (Articles 245, 246, 309).
- Judicial directions that in substance amount to legislation are ultra vires; non-compliance cannot constitute contempt (Prakash P. Hinduja).
- Only in a demonstrable legislative vacuum and in exceptional circumstances (e.g., Vishaka principles) may courts craft interim guidelines, a situation not present here because the Flag Code and penal statutes already occupy the field.
Because the petitioner’s requests sought precisely the sort of legislative intervention the Court is constitutionally barred from granting, and because factual controversies could not be resolved on writ, the petition was found devoid of merit.
Holding and Implications
Writ Petition Dismissed.
All reliefs sought were denied. The Court left the petitioner to pursue his already-filed criminal complaints under applicable statutes and reaffirmed the constitutional limits on judicial law-making. No new precedent was created; the order simply consolidates existing principles on separation of powers and maintainability of Article 32 petitions involving disputed facts.
Order
1. This writ petition has been filed making grievance that the respondents, namely, Yog Guru Baba Ramdev, Shri Anna Hazare, Mrs Kiran Bedi and others have, on several occasions insulted the national flag and violated the norms of waiving of national flag, as provided in the Flag Code, 2002. Thus, the petitioner has sought relief that a sum of Rs 10,00,00,000 (Rupees ten crores) be recovered from Baba Ramdev for misusing the national flag for gaining undue mileage benefiting his commercial ends (yoga business) as well as the political gain drive during agitations; Shri Anna Hazare and others be directed to pay a sum of Rs 10,00,00,000 (Rupees ten crores) to the Prime Minister's Relief Fund for using/misusing the national flag for gaining the political mileage during agitations, and further to issue direction to the Central Government through the Ministry of Law and Justice to revise the Flag Code of India, 2002 and amend the same incorporating the amendment suggested by the petitioner himself.
2. The petitioner appears in person and on being asked by the Court it has been pointed out by him that against the above referred respondents he has filed the criminal complaints before the police authorities and he has been pursuing the said remedy simultaneously.
3. The issue involved in the case has been dealt with by this Court elaborately in Union of India v. Naveen Jindal (2004) 2 SCC 510, AIR 2004 SC 1559 interpreting the clauses contained in the Flag Code, 2002 and explained as under what circumstances and in what manner the national flag can be hoisted by the individuals. The Flag Code is divided into three parts. Part II provides for the mode and manner of hoisting/displaying/use of national flag by the members of public, private organisations, educational institutions, etc. From reading of clause 2.1 of Section 1 appearing in Part II of the Flag Code, it is evident that:
“2.1 There shall be no restriction on the display of the national flag by members of general public, private organisations, educational institutions, etc. except to the extent provided in the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 and any other law enacted on the subject.”
This Court has further held that the Flag Code is not the law within the meaning of Article 13(3)(a) of the Constitution of India. However, the right to fly the national flag is a fundamental right. Further, the Flag Code provides guidelines to be observed for preservation of dignity and respect to the national flag.
4. In view of the above, the national flag is both a benediction and a beckoning. Thus, in case a person shows any kind of disrespect to the national flag or does not observe the terms contained in the Code, legal action may be taken against him under the relevant statutory provisions. However, these are the questions of fact as to whether on a particular event a particular person has shown any kind of disrespect to the national flag. For that purpose, the petitioner has already filed complaint before the authorities concerned. Thus, he cannot pursue the remedy simultaneously by filing the writ petition and on that count the petition is liable to be dismissed. More so, such a factual controversy cannot be examined in a petition under Article 32 of the Constitution of India.
5. The petitioner-in-person has emphasised that he has approached this Court to issue directions to the Central Government through the Ministry of Law and Justice to amend the law in this regard and in the alternative, this Court itself may issue appropriate directions in this regard.
6. It is a settled legal proposition that the court can neither legislate nor issue a direction to the legislature to enact in a particular manner.
7. In Mallikarjuna Rao v. State of A.P (1990) 2 SCC 707, (1990) 13 ATC 724, AIR 1990 SC 1251 and V.K Sood v. Deptt. of Civil Aviation 1993 Supp (3) SCC 9, (1993) 25 ATC 68, AIR 1993 SC 2285, this Court has held that the writ court, in exercise of its power under Article 226, has no power even indirectly to require the executive to exercise its law-making power. The Court observed that it is neither legal nor proper for the High Court to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. The power under Article 309 of the Constitution to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State, as the case may be. The courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its law-making power in any manner. The courts cannot assume to themselves a supervisory role over the rule-making power of the executive under Article 309 of the Constitution. While deciding the said case, the Court placed reliance on a large number of judgments, particularly Narinder Chand Hem Raj v. UT, H.P (1971) 2 SCC 747, AIR 1971 SC 2399, where it has been held that legislative power can be exercised only by the legislature or its delegate and none else.
8. In State of H.P v. Parent of a Student of Medical College (1985) 3 SCC 169, AIR 1985 SC 910, this Court deprecated the practice adopted by the courts to issue directions to the legislature to enact a legislation to meet a particular situation observing:
“4. … The direction given by the Division Bench was really nothing short of an indirect attempt to compel the State Government to initiate legislation with a view to curbing the evil of ragging, for otherwise it is difficult to see why, after the clear and categorical statement by the Chief Secretary on behalf of the State Government that the Government will introduce legislation if found necessary and so advised, the Division Bench should have proceeded to again give the same direction. Thus the Division Bench was clearly not entitled to do. It is entirely a matter for the executive branch of the Government to decide whether or not to introduce any particular legislation.”
9. In Asif Hameed v. State of J&K 1989 Supp (2) SCC 364, AIR 1989 SC 1899 this Court while dealing with a case like this at hand observed:
“19. … While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of legislature or executive.”
(emphasis added)
10. In Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323, (1992) 19 ATC 219, AIR 1992 SC 96, this Court similarly observed:
“14. … It is not the duty of the court either to enlarge the scope of the legislation.… The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts.”
11. Similarly in Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing Service Society Ltd. (1999) 6 SCC 82, AIR 1999 SC 1351, this Court held that the court cannot fix a period of limitation, if not fixed by the legislature, as “the courts can admittedly interpret the law and do not make laws”. The court cannot interpret the statutory provision in such a manner “which would amount to legislation intentionally left over by the legislature”.
12. A similar view has been reiterated by this Court in Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294, AIR 2002 SC 2112 observing that the court cannot issue direction to the legislature for amending the Act or Rules. It is for Parliament to amend the Act or Rules. In District Mining Officer v. Tisco (2001) 7 SCC 358, this Court held that function of the court is only to expound the law and not to legislate.
13. Similarly, in Supreme Court Employees' Welfare Assn. v. Union of India (1989) 4 SCC 187, this Court held that the court cannot direct the legislature to enact a particular law for the reason that under the constitutional scheme Parliament exercises sovereign power to enact law and no outside power or authority can issue a particular piece of legislation. (See also State of J&K v. A.R Zakki 1992 Supp (1) SCC 548, (1992) 20 ATC 285, AIR 1992 SC 1546.)
14. In Union of India v. Prakash P. Hinduja (2003) 6 SCC 195, AIR 2003 SC 2612, this Court held that if the court issues a direction which amounts to legislation and is not complied with by the State, it cannot be held that the State has committed the contempt of court for the reason that the order passed by the court was without jurisdiction and it has no competence to issue a direction amounting to legislation.
15. The issue involved herein was considered by this Court in University of Kerala v. Council of Principals of Colleges (2010) 1 SCC 353, AIR 2010 SC 2532. The Court elaborately explained the scope of separation of powers of different organs of the State under our Constitution; the validity of judicial legislation and if it is at all permissible, its limits; and the validity of judicial activism and the need for judicial restraint, etc. The Court observed:
“13. … ‘19. At the outset, we would say that it is not possible for this Court to give any directions for amending the Act or the statutory rules. It is for Parliament to amend the Act and the rules.’”
16. In State of U.P v. Jeet S. Bisht (2007) 6 SCC 586, this Court held that issuing any such direction may amount to amendment of law which falls exclusively within the domain of the executive/legislature and the court cannot amend the law.
17. In Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers (2011) 8 SCC 568, this Court while dealing with the issue made the observation that in exceptional circumstances where there is inaction by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time the legislature acts to perform its role by enacting proper legislation to cover the field. (See also Vishaka v. State of Rajasthan (1997) 6 SCC 241, AIR 1997 SC 3011; Common Cause v. Union of India (2008) 5 SCC 511, AIR 2008 SC 2116 and Destruction of Public and Private Properties v. State of A.P (2009) 5 SCC 212, AIR 2009 SC 2266)
18. Thus, it is crystal clear that the court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the legislature to enact the law in a particular manner.
19. In view of the above, the petition lacks merit. Facts of the case do not warrant any interference by this Court. In such a fact situation, no relief can be granted to the petitioner. The writ petition is, accordingly, dismissed.
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