V K NASWA Vs HOME SECRETARY, UOI .
Bench: B.S. CHAUHAN,SWATANTER KUMAR
Case number: W.P.(C) No.-000533-000533 / 2011
Diary number: 38179 / 2011
Advocates: PETITIONER-IN-PERSON Vs
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 533 OF 2011
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
2
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
3
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
4
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
5
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.”
6
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
7
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
10