Cutting cake with tri-colour Indian map, Ashoka Chakra design is not an "insult" to Indian Flag: Madras High Court

Cutting a cake with a tricolour map and an Ashoka Chakra design at the centre is not unpatriotic or an "insult" under the Prevention of Insults to National Honour Act, 1971, ruled the Madras High Court on Monday (State v. D Senthilkumar)..Justice N Anand Venkatesh, therefore, quashed criminal proceedings initiated by a Magistrate over the 2013 cake-cutting episode, while also making pertinent observations on patriotism and national pride. ."There is no doubt that nationalism in a democracy like India is very vital. But, hyper and surfeit adherence to it goes against the prosperity of our nation from all its past glory... A patriot is not one who only raises the Flag, symbolises his national pride and wear it on his sleeve, but also, a person who bats for good governance. The symbolisation of national pride is not synonymous with patriotism, just like how cutting a cake is not unpatriotic," the Court said. .The Court also cited the following words of Rabindranath Tagore,“Patriotism cannot be our final spiritual shelter; my refuge is humanity. I will not buy glass for the price of diamonds, and I will never allow patriotism to triumph over humanity as long as I live.”.The case can be traced back to a Christmas day event from 2013, when a 6x5 feet cake with a tri-colour Indian Map and Ashoka Chakra icing was cut, distributed and consumed by over 2,500 guests. The event was also attended by the District Collector of Coimbatore, the Deputy Commissioner of Police, and various other religious leaders and members from NGOs..One, D Senthilkumar filed a complaint alleging that the cake's design was a representation of the Indian National Flag, and that the act of cutting it amounted to an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971 (Section 2 penalises an insult to Indian Flag and Constitution of India with imprisonment up to 3 years or a fine or both)..The State challenged criminal proceedings initiated in the matter before the High Court, contending that no offence was made out, that proper sanction was not obtained before initiating the criminal proceedings in the case which involves public servants (who had attended the event) and that there were procedural irregularities involved in the Magistrate's direction to register an FIR in the matter. .Agreeing on the point of procedural irregularities, the High Court opined, "The procedure followed by the learned Magistrate is patently illegal. Power to direct investigation under Section 156(3), Cr.P.C. is done at the pre-cognisance stage. Therefore, once the Magistrate decides to take cognisance and embarks upon the procedure stipulated under Chapter XV, Cr.P.C., he cannot revert back to the pre-cognisance stage and pass orders under Section 156(3), Cr.P.C.".To decide on whether the cake-cutting amounted to an offence, the Court traced the historical background concerning the Indian flag and case-laws on what would amount to insulting the flag. .Justice Venkatesh proceeded to opine that patriotism is not determined by a gross physical act, rather the crucial test would be the intention behind an act. Viewed from this perspective, the Court observed that the persons who had attended the function are unlikely to have intended to bring down national pride by cutting the cake. ."Will they be feeling great pride in belonging to this great nation, or would the pride of India have come down on the mere cutting of a cake during the celebration? Without any hesitation, this Court can hold that the participants would have felt only the former and not the latter," the Judge said..To explain further, the Court also cited a hypothetical situation wherein persons participating in an Independence Day or Republic Day celebration. are provided with a national flag to be worn by them. It is not as if the participants continue to possess these flags forever after such an event, the Court pointed out, and its unlikely that the paper flags may become part of waste paper. "Will this mean that each of the participants has insulted the national Flag and should be proceeded against under Section 2 of the Act? The obvious answer is in the negative", the Court pointed out. .If persons are allowed to give such broad meaning to the word ‘insult’, many will become very uncomfortable and hesitant to handle the national Flag, the Court added. "The National Flag is given during the function as a symbol of our national pride. Once such a feeling is created in the minds of the participants, the purpose for which the national Flag was given or used will be achieved.... The Flag Code does provide a mechanism to destroy flags in private, in a manner consistent with the dignity of the Flag, and as a responsible citizen, it should be followed in letter and spirit. Not all will be aware of this procedure, and therefore, that by itself will not make them susceptible to committing an offence under Section 2 of the Act," the order said, .The Court proceeded to quash the criminal proceedings, while also emphasising that the extreme example cited is only intended to drive home the point that a wayfarer should not expose persons to criminal proceedings for innocuous acts only for the sake of publicity. .Read the Order: