V K Naswa vs Home Secretary, Uoi And Ors

V.K. Naswa ...

Petitioner

Versus

Home Secretary, U.O.I. and Ors. ...

Respondents

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 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 & 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

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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

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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

particular manner.

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

law-making power. 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

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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 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

observing :

"...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

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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 added)

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."

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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 to legislate.

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

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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 Rules."

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) 9

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 particular manner.

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.

.............................

...J.

(Dr. B.S. CHAUHAN)

.............................

...J.

(SWATANTER

KUMAR)

New Delhi,

January 9, 2012

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