V.K. Naswa Vs. Home
Secretary, U.O.I. and Ors
Jurisdiction Writ Petition (Civil) No. 533 of 2011]
O R D E R
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.10,00,000,00/- (Rupees Ten crores) be recovered from Baba Ramdev
for misusing 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.1,00,000,00/- (Rupees Ten crores) to the Prime
Minister's Relief Fund for using/misusing National Flag for gaining the
political mileage during agitations, and further to issue direction to the Central
Government through Ministry of Law & Justice to revise the Flag Code of India
2002 and amend the same incorporating the amendment suggested by the petitioner
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 & Anr., 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 3 parts. Part II provides for the mode and manner of
hoisting/displaying/use of National Flag by Members of Public, Private
Organisations, Educational Institutions etc.
From reading of clause
2.1 of Section 1 appear in Part II of the Flag Code, it is evident that there
is no restriction on the display of National Flag by members of general public,
private organizations and educational institutions etc. except to the extent provided
in the Emblems and Names (Prevention of Improper Use) Act, 1950 and Prevention of
Insults to National Honour Act, 1971 and any other law enacted on the subject. This
Court has further held that Flag Code is not the law within the meaning of
Article 13(3)(a) of the Constitution of India. However, right to fly 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 facts 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 Ministry of Law & Justice to amend the law in
this regard and in the alternative, this court itself may issue appropriate
directions in this regard. It is a settled legal proposition that the court
can neither legislate nor issue a direction to the Legislature to enact in a
6. In Mullikarjuna Rao
& Ors. etc. etc. v. State of Andhra Pradesh & Ors. etc. etc., AIR 1990
SC 1251; and V.K. Sood v. Secretary, Civil Aviation & Ors., AIR 1993 SC
2285, this Court has held that Writ Court, in exercise of its power under
Article 226, has no power even indirectly require the Executive to exercise its
The Court observed that
it is neither legal nor proper for the High Court to issue direction 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 4President 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 itself a supervisory role over the rule-making power of the
Executive under Article 309 of the Constitution.
7. While deciding the
said case, the Court placed reliance on a large number of judgments,
particularly M/s. Narinder Chand Hem Raj & Ors. v. Lt. Governor, Administrator,
Union Territory, Himachal Pradesh & Ors., 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 Himachal
Pradesh v. A Parent of a Student of Medical College, Shimla & Ors., 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
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 decided whether or not to introduce any particular legislation.
9. "In Asif Hameed
& Ors. v. State of Jammu & Kashmir & Ors., AIR 1989 SC 1899, this
Court while dealing with a case like this at hand observed: "While doing
so, the Court must remain within its self-imposed limits. The Court sits in
judgment on the action of a co-ordinate 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 matter of policy or to sermonize qua any matter which under
the Constitution lies within the sphere of Legislature or Executive." (Emphasis
10. In Union of India
& Anr. v. Deoki Nandan Aggarwal, AIR 1992 SC 96, this Court similarly
observed : "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 Court."
11. Similarly in Ajaib Singh
v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. & Anr.,
AIR 1999 SC 1351, this Court held that 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. Association for Democratic
Reforms & Anr., AIR 2002 SC 2112, observing that the Court cannot issue direction
to the legislature for amending the Act or Rules. It is for the Parliament to
amend the Act or Rules.
13. In District Mining
Officer & Ors. v. Tata Iron & Steel Co. & Anr., (2001) 7 SCC 358,
this Court held that function of the Court is only to expound the law and not
14. Similarly, in Supreme
Court Employees' Welfare Association v. Union of India & Anr., (1989) 4 SCC
187, this Court held that Court cannot direct the legislature to enact a particular
law for the reason that under the constitutional scheme the Parliament exercises
sovereign power to enact law and no outside power or authority can issue a
particular piece of legislation.(See also: State of Jammu & Kashmir v. A.R.
Zakki & Ors., AIR 1992 SC 1546).
15. In Union of India v.
Prakash P. Hinduja & Anr., 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.
16. The issue involved herein
was considered by this Court in University of Kerala v. Council, Principals',
Colleges, Kerala & Ors., 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: 8 "At the outset, we would say
that it is not possible for this Court to give any direction for amending the
Act or the statutory rules. It is for the Parliament to amend the Act and the
17. In State of U.P. &
Ors. v. Jeet S. Bisht & Anr., (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.
18. In Delhi Jal Board v.
National Campaign for Dignity and Rights of Sewerage and Allied Workers & Ors.,
(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 & Ors. v. State of Rajasthan & Ors. AIR 1997 SC 3011; Common
Cause (A Regd. Society) v. Union of India & Ors., AIR 2008 SC 2116; and Destruction
of Public and Private Properties v. State of A.P. & Ors., AIR 2009 SC 2266)
19. 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 it has
any competence to issue directions to the legislature to enact the law in a
20. 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.
(Dr. B.S. CHAUHAN)