V.K. NASWAversusHOME SECRETARY, U.O.I. AND ORS.

                        [2012) 2 S.C.R. 912


A                          V.K. NASWA
                                 v.
              HOME SECRETARY, U.0.1. AND ORS.
               (Writ Petition (Civil) No. 533 of 2011)

                        JANUARY 09, 2012
B
     [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

        Constitution of India, 1950 - Article 32 - Writ petition
   against respondents alleging that they insulted the National
C Flag and violated the norms of waiving of National Flag, as
  provided in the Flag Code 2002 - Petitioner seeking relief that
   a sum of Rupees Ten Crores be recovered from one
  respondent for misusing National Flag for gaining undue
  mileage benefiting his commercial ends as well as the political
o gain drive during agitations and other respondents be directed
   to pay Rupees Ten Crores to Prime Minister's Relief Fund for _
  using/misusing National Flag for gaining undue mileage ··
  during agitations - Also sought issuance of direction to the
  Central Government through Ministry of Law & Justice to
E revise the Flag Code of India 2002 and amend the same
  incorporating the amendment suggested by the petitioner
  himself - Held: National Flag is both a benediction and a
  beckoning - In case a person shows any kind of disrespect
  to the National Flag or does not observe the terms contained
F in the Code, legal action may be taken against him under the
  relevant statutory provisions - However, these are factual
  issues whether on a particular event a particular person
  showed any kind of disrespect to the National Flag - For that
  purpose, the pe_titioner has already filed criminal complaints
G before the police authorities - Thus, he cannot pursue the
  remedy simultaneously by filing the writ petition - More so,
  such a factual controversy cannot be examined in a petition
  under Article 32 - Neither the Court can legislate, nor it has
  any competence to issue directions to the legislature to enact
  the law in a particular manner - The court has very limited
H                               912
       V.K. NASWA v. HOME SECRETARY, U.0.1.                   913


role and in exercise of that it is not open to judicial legislation   A
- Thus, no interference is called for- Flag Code of India 2002.

     Union of India v. Naveen Jindal & Anr. AIR 2004 SC
1559; Mullikarjuna Rao & Ors. etc. etc. v. State of Andhra
Pradesh & Ors. etc. etc., AIR 1990 SC 1251; V.K. Sood v.
                                                                      8
Secretary, Civil Aviation & Ors., AIR 1993 SC 2285; M/s.
Narinder Chand .Hem Raj & Ors. v. Lt. Governor,
Administrator, Union Territory, Himachal Pradesh & Ors. AIR
1971 SC 2399; State of Himachal Pradesh v. A Parent of a
Student of Medical College, Shim/a & Ors. AIR 1985 SC 910;            C
Asif Hameed & Ors. v. State of Jammu & Kashmir & Ors. AIR
1989 SC 1899; Union of India & Anr. v. Deoki Nandan
Aggarwal AIR 1992 SC 96; Ajaib Singh v. Sirhind Co-
operative Marketing-cum-Processing Service Society Ltd. &
Anr. AIR 1999 SC 1351; Union of India v. Association for
Democratic Reforms & Anr. AIR 2002 SC 2112'; District                 D
Mining Officer & Ors. v. Tata Iron & Steel Co. & Anr. (2001) 7
SCC 358; Supreme Court Employees' Welfare Association
v. Union of India & Anr. (1989) 4 SCC 187; State of Jammu
& Kashmir v. A.R. Zakki & Ors. AIR 1992 SC 1546; Union of
India v. Prakash P. Hinduja & Anr., AIR 2003 SC 2612;                 E
University of Kera/a v. Council, Principals', Colleges, Kera/a
& Ors. AIR 2010 SC 2532; State of U.P. & Ors. v. Jeet S. Bisht
& Anr. (2007) 6 SCC 586; Delhi Jal Board v. National
Campaign for Dignity and Rights of Sewerage and Allied
Workers & Ors. (2011) 8 SCC 568; Vishaka & Ors. v. State              F
of Rajasthan & Ors. AIR 1997 SC 3011; Common Cause (A
Regd. Society) v. Union of India & Ors. AIR 2008 SC 2116;
Destruction of Public and Private Properties v. State of A. P.
& Ors., AIR 2009 SC 2266 - relied on.
                                                                      G
                       Case Law Reference:
     2004 (1) SCR 1038              Relied on           Para 3
     1990 (2) SCR 418               Relied on           Para 6
     1993 (3) SCR 772               Relied on           Para 6        H
    914       SUPREME COURT REPORTS                  [2012) 2 S.C.R.


A         1972 SCR 940                 Relied on           Para 7
          1985 (3) SCR 676             Relied. on          Para 8
          1989 (3) SCR 19              Relied on           Para 9
          AIR 1992 SC 96               Relied on           Para 10
B
          1999 (2) SCR 505             Relied on           Para 11
          2002 (3) SCR 696             Relied on           Para 12
          2001 (1) Suppl. SCR 147 Relied on                Para 13
c
          1989 (3) SCR 488             Relied on           Para 14
          1991 (3) Suppl. SCR 216 Relied on                Para 14
          2003 (1) Suppl. SCR 307 Relied on                Para 15
D         2009 (15) SCR 800            Relied on           Para 16
          2007 (7 ) SCR 705            Relied on           Para 17
          (2011) 8 sec 568             Relied on           Para 18
E         1997 (3) Suppl. SCR 404 Relied on                Para 18
          2008 (6) SCR 262             Relied on           Para 18
          2009 (6) SCR 439             Relied on           Para 18
        CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
F
    533 of 2011.

          Under Article 32 of the Constitution of India.

          V.K. Naswa Petitioner-In-Person.
G         The following Order of the Court was delivered

                                 ORDER

         1. This writ petition has been filed making grievance that
H   the respondents, namely, Yog Guru Baba Ramdev; Shri Anna
      V.K. NASWA 11. HOME SECRETARY, U.0.1.                 915


Hazare, Mrs. Kiran Bedi and others have, on several occasions A
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 B
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 c
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        D
by the court it has been pointed out by him that against the
above referred respondents he has filed the criminal complaints
before the p9lice authorities and he has been pursuing the said
remedy simultaneously.
                                                                     E
     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 F ·
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 G
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
                                                                     H
    916      SUPREME COURT REPORTS                    [2012] 2 S.C.R.


A   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
B   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
C   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
D   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.

E         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.
F        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 Mu/likarjuna Rao & Ors. etc. etc. v. State of Andhra
G   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
H · is neither legal nor proper for the High Court to issue direction
        V.K. NASWA v. HOME SECRETARY, U.0.1.                       917

  or advisory sermons to the Executive in respect of the sphere           A
  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 President or the
  Governor of a State, as the case may be. The Courts cannot              B
  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.           c
       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, Himacha/ Pradesh & Ors., AIR 1971 SC 2399, where
 it has been held that legislative power can be exercised only            D
 by the legislature or its delegate and none else.

      8. In State of Himacha/ Pradesh v. A Parent of a Student
 of Medical College, Shim/a & Ors., AIR 1985 SC 910, this
 Court deprecated the practice adopted by the Courts to issue             E
 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
                                                                          F
      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                      G
      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 tha Government to
      decided whether or not to introduce any particular
      legislation. n                                                      H
    918      SUPREME COURT REPORTS                   . [2012] 2 S.C.R.


A         9. In Asif Hameed & Ors. v. State of Jammu & Kashmir I
    & 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 I
          self-imposed limits. The Court sits in judgment on the
B
          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
c         matter which under the Constitution lies within the sphere
          of Legislature or Executive."

          (Emphasis added)

D       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
E         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
F 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
G 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
H for the Parliament to amend the Act or Rules.
       V.K. NASWA v. HOME SECRETARY, U.0.1.                         919


     13. In District Mining Officer & Ors. v. Tata Iron & Steel A
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 B
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.
                                                                            c
     (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 o
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.                      E
     16. The issue involved herein was considered by this Court
in University of Kera/a v. Council, Principals', Colleges, Kera/a
& 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          F
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:

     "At the outset, we would say that it is not possible for this G
     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 sec 586, this Court held that issuing any such direction may H
    '920    SUPREME COURT REPORTS                    [2012] 2 S.C.R.


A   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
B 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
C 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
D 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
E   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
F   a fact-situation, no relief can be granted to the petitioner. The
    writ petition is, accordingly, dismissed.

    N.J.                                    Writ Petition dismiss~d.