Author: Kumari Anushka Srivastava, Lloyd Law College
Introduction
The National Flag embodies identity, unity, and sacrifices for India’s freedom. The flag is not only a piece of cloth with three colours and the Ashok chakra but also living embodiment of sacrifices of its people and the sovereignty of the republic. The national flag now is result of many modifications and fights won to reach to what we call as “tiranga”. Tiranga is a blend of tricolour of deep saffron or the Kesari, green and the white along with Ashok chakra, each of the colours holding a separate meaning like the saffron indicating strength and courage, the green colour signifies the fertility, growth and sacredness of the land and the white colour depicts the peace and truth, also the Ashok chakra shows the Dharma Chakra – Navy blue wheel with 24 spokes in the centre of the white stripe. India is the land of diversities, the diversity in cultures, traditions or the customs, languages festivals celebrations, practices there are a few occasions or the events which the whole country celebrates and gives them another reason to be together and to represent their unity. The Flag evokes profound patriotic sentiments. On days like Independence Day and Republic Day, millions hoist or salute it as an expression of loyalty to the nation. In the course of this celebration and to depict their happiness, excitement and the proud moment, people tend to make the “tiranga” or use of the tricolour on the edible food products. The burning debate comes onto boil whether use of tricolours of our flag or the replication of the national flag on edible items amount to disrespect of the flag or not. But at same time the “tiranga mithai” has been nationally protected by the geographical indication laws, which also happens to be a sweet from a city of Uttar Pradesh state.
Legal framework
THE CONSTITUTION OF INDIA
The dignity of the National Flag originates from constitution. they are basically from:
• Article 19(1)(a) guarantees freedom of speech and expression
• Article 51A(a) of the Constitution imposes a fundamental duty on every citizen to respect the National Flag, National Anthem, and the Constitution.
EMBLEMS AND NAMES (PREVENTION OF IMPROPER USE) ACT, 1950
The Emblems and Names (Prevention of Improper Use) Act, 1950 was formed by the Indian Parliament with an aim to prevent the improper use of certain emblems, names, and designations that are associated with the Government of India or other various governmental authorities.
Section 3 of the act prohibits the unauthorized use of the Indian National Flag, the Coat of Arms of India, official seals of the Government of India, and names like “National,” “Union,” “Central,” “Federal,” “Republic,” “President,” “Parliament,” and similar designations that might suggest official government connection or endorsement. But can be used after the permission of central government or such officer of government as may be authorised.
The act also provides for penalties including fines and imprisonment for violations, and attracts actions against the wrongdoer. This law remains an important piece of legislation for maintaining the integrity of India’s national symbols and preventing their commercial or inappropriate exploitation.
THE PREVENTION OF INSULTS TO NATIONAL HONOUR ACT, 1971
Another legislation which was passed in 1971when India had experienced partition, multiple wars, and various internal challenges that made protecting national symbols particularly significant.
Section 2 of the act says that if anyone, in a public place or anywhere visible to the public, shows disrespect to the Indian National Flag or the Constitution of India—whether by burning, damaging, defacing, insulting through words or actions—they can be punished. The punishment may be up to three years of imprisonment, or a fine, or both.
further, section 3 Penalises the intentional prevention of the singing of the National Anthem or causing disturbance to any assembly engaged in such singing.
For which in the famous case of Naveen Jindal v. Union of India (2004), the supreme court decided and laid a clear interpretation of the principles. This case laid a milestone in Indian constitutional history and interpretations, affirming the citizens their right to express patriotism by flying the national flag. After this landmark judgement flying the national flag was now recognised as a fundamental right but with reasonable restrictions.
Also, in the case of Bijoe Emmanuel v. State of Kerala (1986), popularly known as the Jehovah’s Witnesses case, the Supreme Court held that refusing to sing the National Anthem due to religious beliefs did not amount to disrespect (pre condition here is that there is no intention to insult). This case also highlighted the balance between individual rights and the duty to respect national symbols.
FLAG CODE OF INDIA, 2002
The Flag Code of India, 2002 consolidates and codifies executive instructions, laws, and conventions relating to the Flag, thereby ensuring uniform respect and dignity across all contexts.
Salient features of the code
The flag code states some salient features of displaying, handling, and usage of Indian national flag.
1. The material of the flag should be made of hand-spun, hand-woven, or machine-made cotton, polyester, wool, or silk khadi.
2. For the dimensions length to height is 3:2
3. Can be flown day and night if hoisted in the open and on flagpole
4. To be hoisted in a respectful and upright position
5. No writing or symbols is supposed to be displayed on flag
6. Should be in a superior position when displayed with other flags
7. The Flag must be respectfully disposed of, ideally through burning or by burying it.
Hoisting rules
1. Saffron band to be on top
2. Half-mast hoisting allowed only on special occasions
3. No flag dipping
4. Damaged or spoiled flags must not be displayed
5. Flag placement should occupy a position of hour
6. such other rules
THE RECENT INCIDENTS GIVING RISE TO DISPUTE
Inspector of Police v. D. Senthilkumar (Madras High Court, 2021)
Facts of the Case
This case involved the cutting of a cake decorated with an outline of the tri-colour Indian map and the Ashoka Chakra during a Christmas celebration serving 2500 people. A complaint alleged this action disrespected the flag and violated the Prevention of Insults to National Honour Act, 1971.
Issues raised
• Does cutting a cake that has the Indian Tricolour and Ashoka Chakra amount to insult to the Flag under the act?
• Is mere representation of the Flag on an edible item per se illegal, irrespective of intent?
Decision
The Madras High Court in this case held the cutting the cake that is decorated in colours of national flag shall not amount to ‘insult’. The reasoning behind it was that it doesn’t prove at all that the people cutting the cake in a private celebration had any intention to publicly “insult”, “burn”, or “bring disrespect” to the Indian Tricolour.
Using Tricolour in Mithai (Sweets)
Banaras (Tirangi) Barfi – GI-Tagged
Banaras Tirangi Barfi, a milk-based sweet layered to resemble the Indian tricolour, has been granted a GI tag. A sweet of Varanasi made during the freedom movement, a symbolic representation of the Indian flag crafted using saffron white and green coloured layers made from khoya and some nuts.
This sweet is of historical significance and cultural background which is different from the regular tri-coloured edibles which directly shows the flag or resembles the flag itself.
Conclusion
Hence to conclude the opinion formed now is the use of national flag is strictly regulated by the codified laws to protect the dignity and symbolic value. Both the Flag Code of India, 2002, and the Prevention of Insults to National Honour Act, 1971 contain strict rules prohibiting the use of the National Flag, or any replica of it, on food items, garments, packaging, or decorative materials. Therefore, the use of tricolours of the Indian flag with the Ashok chakra showing the flag on sweets cakes or other edible items is prohibited and violation of which shall attract penal charges against the wrongdoer. An important exception, however, is recognized in the case of the Banaras Tirangi Barfi. Unlike the cake, in the case of D Senthil Kumar, this sweet does not include the Ashoka Chakra and does not signify to be a replica of the tricolour, rather it symbolically reflects patriotism and historical depiction to the sweet (which forms the very reason of granting the Geographical Indication (GI) tag under the Geographical Indications of Goods (Registration and Protection) Act, 1999) hence affirming the unique identity of the sweet as a heritage of Varanasi. The points to be considered hereon is that the use of tricolours is allowed by the Indian legal system and that does not show any disrespect, until and unless that tricolour also bears the Ashok chakra as well.
FAQS
Can the National Flag be used in commercial purposes?
No, the Indian national flag cannot be used for the commercial purpoeses. The usage is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Flag Code of India, 2002. The exception here lies that the use is permissible only if authorised by the central government.
What considered as an “insult” to the National Flag under Section 2 of the Prevention of Insults to National Honour Act, 1971 Act?
Insult as per the Prevention of Insults to National Honour Act, 1971 covers the acts like urning, mutilating, defacing, defiling, disfiguring, destroying, trampling upon, or otherwise showing disrespect in public view. Disrespect also covers improper use on clothing, decorations, packaging, or letting the Flag touch the ground. If a person is found in any of these acts they shall attract a punishment of imprisonment of upto 3 years or fine or both.
Is it permissible to display symbols, writing, or advertisements on the National Flag?
No, it is not permissible to symbols or writings, slogans or designs on flags. Under Section 2 of the Prevention of Insults to National Honour Act, 1971, such actions are treated as acts of disrespect.
What was the view of the Madras High Court regarding the Tricolour being used on a cake?
The court in this case held that use of tricolour did not amount to any disrespect as the intention to was celebration and to not insult the flag.
Differentiate between symbolic use of tricolours (as in Tirangi Barfi) and direct imitation of the National Flag.
Symbolic use of tricolours, as in Tirangi Barfi, only employs saffron, white, and green layers to represent patriotism and cultural heritage, without replicating the Flag or using the Ashoka Chakra. This is legally permissible and even recognised through a GI tag. Direct imitation, however, reproduces the Flag in its entirety, including the Chakra, and is prohibited.
