JUDGMENT Justice Dharam Chand Chaudhary, J. (Oral): The complaint herein is that in the office of respondent No.3 the National Flag is not being hoisted in accordance with the provisions contained under the Flag Code of India. The issue so brought to this Court by filing the present writ petition is of vital significance and needs adjudication in the light of the provisions contained under the Flag Code of India, 2002 and also the Prevention of Insults to National Honour Act, 1971 and also the law laid down by the Apex Court. 2. The Apex Court while answering a question in Union of India Versus Naveen Jindal and Another (2004) 2 SCC 510 that the right to fly the National Flag by an Indian citizen is a fundamental right within the meaning of Article 19(1)(a) of the Constitution of India, has adjudged the honour and glory of the Indian National Flag in the following words:- ”7. Before we proceed further it may be remembered that from time immemorial, people have laid down their lives with a view to salute their own flag. What is so compelling in the piece of cloth called the National Flag, that people make even the supreme sacrifice for its sake? National Flag indisputably stands for the whole nation, its ideals, aspirations, its hopes and achievements. 8. “A National Flag” as pointed by Lt. Cdr. K.V. Singh in his book Our National Flag is the most solemn symbol of a country. Be it a Head of the State, King or peasant, salutes it. A piece of cloth called the National Flag stands for the whole nation, its honour and glory. When it goes up the flag mast, “the heart of a true citizen is filled with pride”. In his foreword to this very book, Mr. R. Venkataraman, former President of India, referred to the struggle for independence and said as under: “Our flag, therefore, is both a benediction and beckoning. It contains the blessings of all those great souls who brought us to freedom. But it also beckons us to fulfil their vision of a just and united India. As we confront crucial challenges to our security, our unity and integrity, we cannot but heed to the call of this flag to rededicate ourselves to the establishment of that peaceful and just order wherein all Indians irrespective of creed, caste or sex will fulfil themselves.” 3. As we confront crucial challenges to our security, our unity and integrity, we cannot but heed to the call of this flag to rededicate ourselves to the establishment of that peaceful and just order wherein all Indians irrespective of creed, caste or sex will fulfil themselves.” 3. The question as to whether the Flag Code of India is a law or not, has been answered by the Apex Court again in Naveen Jindal’s case, supra, as under:- “Before we proceed further, it is necessary to deal with the question, whether Flag Code is “law”? Flag Code concededly contains the executive instructions of the Central Government. It is stated that the Ministry of Home Affairs, which is competent to issue the instructions contained in the Flag Code and all matters relating thereto are one of the items of business allocated to the said Ministry by the President under the Government of India (Allocation of Business) Rules, 1961 framed in terms of Article 77 of the Constitution of India. The question, however, is as to whether the said executive instruction is “law” within the meaning of Article 13 of the Constitution of India. Article 13(3)(a) of the Constitution of India reads thus:- “13.(3)(a) ‘law’ includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;” 4. The scope of provisions contained in the Flag Code of India has also been discussed by the Apex Court in the judgment, ibid, and finally held as under:- “90. 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 the 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. (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 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-à-vis, the regulatory measures/ restrictions, both Parts IV and IV-A of the Constitution of India can be taken recourse to.” 5. In a recent judgment again that of the Apex Court in V.K. Naswa Versus Home Secretary, Union of India and others (2012) 2 SCC 542 , where the issue qua the insult of Indian National Flag by Baba Ramdev, Anna Hazare and Kiran Bedi and others was brought to the Apex Court with the prayer to recover rupees ten crores from Baba Ramdev for misusing the National Flag for undue gain in his yoga business and rupees ten crores from Anna Hazare for use of National Flag for gaining political mileage and deposit the same in Prime Minister’s Relief Fund, the Apex Court has held as under:- “3. The issue involved in the case has been dealt with by this Court elaborately in Union of India v. Naveen Jindal 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. 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.” 6. The Prevention of Insults to National Honour Act, 1971 (Amended by the Prevention of Insults to National Honour (Amendment) Act, 2003) provides as under:- “Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag ….. or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. 7. or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. 7. Explanation 4 below the provisions, ibid, extracted below provides for as to what constitutes the dis-respect to the Indian National Flag:- (a) a gross affront or indignity offered to the Indian National Flag; or (b) dipping the Indian National Flag in salute to any person or thing; or (c) flying the Indian National Flag at half-mast except on occasions on which the Flag is flown at half-mast on public buildings in accordance with the instructions issued by the Government; or (d) using the Indian National Flag as a drapery in any form whatsoever except in state funerals or armed forces or other para-military forces funerals; or (e) using the Indian National Flag as a portion of costume or uniform of any description or embroidering or printing it on cushions, handkerchiefs, napkins or any dress material; or (f) putting any kind of inscription upon the Indian National Flag; or (g) using the Indian National Flag as a receptacle for receiving, delivering or carrying anything except flower petals before the Indian National Flag is unfurled as part of celebrations on special occasions including the Republic Day or the Independences Day; or (h) using the Indian National Flag as covering for a statute or a monument or a speaker’s desk or a speaker’s platform; or (i) allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally; or (j) draping the Indian National Flag over the hood, top and sides or back or on a vehicle, train, boat or an aircraft or any other similar object; or (k) using the Indian National Flag as a covering for a building; or (l) intentionally displaying the Indian National Flag with the “saffron” down. 8. If coming to the provisions contained under the Flag Code of India, 2002, Section II of Part-III deals with official display of the National Flag, which reads as follows:- “3.3 Subject to the provisions contained in Section I above, it shall be mandatory for all Government and their organisations/agencies to follow the provisions contained in this Part. 3.4 On all occasions for official display, only the Flag conforming to specifications laid down by the Bureau of Indian Standards and bearing their standard mark shall be used. 3.4 On all occasions for official display, only the Flag conforming to specifications laid down by the Bureau of Indian Standards and bearing their standard mark shall be used. On other occasions also, it is desirable that only such Flags of appropriate size are flown.” 9. What is the correct display of the National Flag, finds mention under Section III of Part-III of the Flag Code, which also reads as follows:- “3.5 Wherever the Flag is flown, it should occupy the position of honour and be distinctly placed. 3.6 Where the practice is to fly the Flag on any public building, it shall be flown on that building on all days including Sundays and holidays and, except as provided in this Code, it shall be flown from sun-rise to sun-set irrespective of weather conditions. The Flag may be flown on such a building at night also but this should be only on very special occasions. 3.7 The Flag shall always be hoisted briskly and lowered slowly and ceremoniously. When the hoisting and the lowering of the Flag is accompanied by appropriate bugle calls, the hoisting and lowering should be simultaneous with the bugle calls. 3.8 When the Flag is displayed from a staff projecting horizontally or at an angle from a windowsill, balcony, or front of a building, the saffron band shall be at the farther end of the staff. 3.9 When the Flag is displayed flat and horizontal on a wall, the saffron band shall be upper most and when displayed vertically, the saffron band shall be to the right with reference to the Flag, i.e., it may be to the left of a person facing it. 3.10 When the Flag is displayed on a speaker’s platform, it shall be flown on a staff on the speaker’s right as he faces the audience or flat against the wall above and behind the speaker. 3.11 When used on occasions like the unveiling of a statute, the Flag shall be displayed distinctly and separately. 3.12 When the Flag is displayed alone on a motor car, it shall be flown from a staff which should be affixed firmly either on the middle front of the bonnet or to the front right side of the car. 3.11 When used on occasions like the unveiling of a statute, the Flag shall be displayed distinctly and separately. 3.12 When the Flag is displayed alone on a motor car, it shall be flown from a staff which should be affixed firmly either on the middle front of the bonnet or to the front right side of the car. 3.13 When the Flag is carried in a procession or a parade, it shall be either on the marching right, i.e. the Flag’s own right, or if there is a line of other flags, in front of the centre of the line.” 10. What amounts to incorrect display and misuse of the National Flag, finds mention under Section IV of Part-III of the Flag Code, which reads as follows:- INCORRECT DISPLAY: 3.14 A damaged or disheveled Flag shall not be displayed. 3.15 The Flag shall not be dipped in salute to any person or thing. 3.16 No other flag or bunting shall be placed higher than or above or, except as hereinafter provided, side by side with the National Flag; nor shall any object including flowers or garlands or emblem be placed on or above the Flag-mast from which the Flag is flown. 3.17 The Flag shall not be used as a festoon, rosette or bunting or in any other manner for decoration. 3.18 The Flag shall not be used to cover a speaker’s desk nor shall it be draped over a speaker’s platform. 3.19 The Flag shall not be displayed with the “saffron” down. 3.20 The Flag shall not be allowed to touch the ground or the floor or trail in water. 3.21 The Flag shall not be displayed or fastened in any manner as may damage it. MISUSE 3.22 The Flag shall not be used as a drapery in any form whatsoever except in State/Military/ Central Para military Forces funerals hereinafter provided. 3.23 The Flag shall not be draped over the hood, top, sides or back of a vehicle, train or boat. 3.24 The Flag shall not be used or stored in such a manner as may damage or soil it. 3.25 When the Flag is in a damaged or soiled condition, it shall not be cast aside or disrespectfully disposed of but shall be destroyed as a whole in private, preferably by burning or by any other method consistent with the dignity of the Flag. 3.25 When the Flag is in a damaged or soiled condition, it shall not be cast aside or disrespectfully disposed of but shall be destroyed as a whole in private, preferably by burning or by any other method consistent with the dignity of the Flag. 3.26 The Flag shall not be used as a covering for a building. 3.27 The Flag shall not be used as a portion of a costume or uniform of any description. It shall not be embroidered or printed upon cushions, handkerchiefs, napkins or boxes. 3.28 Lettering of any kind shall not be put upon the Flag. 3.29 The Flag shall not be used in any form of advertisement nor shall an advertising sign be fastened to the pole from which the Flag is flown. 3.30 The Flag shall not be used as a receptacle for receiving, delivering, holding or carrying anything. Provided that there shall be no objection to keeping flower petals inside the Flag before it is unfurled, as part of celebrations on special occasions and on National Days like the Republic Day and the Independence Day. 11. It is in the light of law laid down by the Apex Court in Naveen Jindal’s and V.K. Naswa’s cases, cited supra and the statutory provisions taken note of hereinabove, the fate of this petition has to be decided. 12. It is seen that normally the National Flag is being flown on important public buildings such as High Courts, Secretariats, Commissioners’ Offices, Collectorates etc. In the National Code of India there is nothing that the person flying the National Flag in these offices in the morning and lowering down in the evening, should be of a particular rank and specially trained. The paramount consideration while flying over and lowering down the National Flag, however, is to show due respect to the National Flag and fly/display and lower down the same correctly and as per the provisions, ibid, made under the Flag Code of India. 13. In the case in hand, it is Chowkidar in the office of rd respondent, who has been assigned this onerous duty of flying over and lowering down the National Flag. The photographs, Annexure P-1 to the writ petition reveal that the official lowering down the National Flag is properly dressed and has covered his head also properly with cap. 13. In the case in hand, it is Chowkidar in the office of rd respondent, who has been assigned this onerous duty of flying over and lowering down the National Flag. The photographs, Annexure P-1 to the writ petition reveal that the official lowering down the National Flag is properly dressed and has covered his head also properly with cap. The National Flag is also being lowered down by him slowly and slowly as per the requirement of the Flag Code. However, it is shocking to note that in the process of lowering down the National Flag, all of a sudden, on receiving a call on his cell phone instead of completing the process of lowering down the Flag with due regard and respect thereto, he had taken out from the pocket his cell phone and started attending that call. True it is that in the Flag Code of India nothing specific has been provided that such a conduct of a person flying over or lowering down the National Flag amounts to dis-respect, yet such a conduct in our considered opinion amounts to dis-respect to the National Flag within the meaning of the Prevention of Insults to National Honour Act, 1971, discussed supra. The rest of the process to lower down the National Flag by the official concerned, as the photographs demonstrate, however, is in accordance with the requirement of Flag Code of India. The Chowkidar is a Class-IV employee. It is correct that a Chowkidar is available in an office in the morning, at the time of flying over the National Flag and in the evening also when there is time of its lowering down. In the absence of any requirement of an official in a particular rank for flying over and lowering down the National Flag, a Chowkidar in an office is fully competent to perform this job. However, he is required to be apprised about the provisions contained under the Flag Code and in the Prevention of Insults to National Honour Act, 1971 and also training in right direction should also be imparted to such official so that the object behind the provisions contained under the Flag Code of India and the Act, ibid, is achieved and such instances of showing dis-respect and insult to the National Flag, can be ruled out. 14. 14. The 3rd respondent has already made a request to the Superintendent of Police for deployment of a police officer in appropriate rank to fly over and lower down the National Flag being hoisted in the Collectorate at Mandi. If any such arrangement can be made, no doubt, it will be in the better interest of hoisting the National Flag properly, however, if no such arrangement is possible, in that event also, the object can be achieved by imparting training to the Chowkidar/any other official in the office of 3rd respondent in its right direction and apprising him about the provisions contained under the Act and Flag Code of India. 15. In view of what has been stated hereinabove, there shall be a direction to the 2nd respondent to ensure that all concerned in the State fly the National Flag correctly as per the procedure prescribed under the Flag Code of India and not to show any insult or dis-respect of any kind to the National Flag. We, however, take a lenient view of the instance of dis-respect shown by the Chowkidar in the office of 3rd respondent highlighted in the present writ petition on this occasion with the direction that no such instances shall occur in future. 16. With the above observations, this writ petition stands finally disposed of, so also the pending application(s), if any.