'Few Former Constitutional Authorities & Ex-Legislators Misusing State Emblem': Madras High Court Issues Directions To Prosecute Offenders

Coming down heavily on the misuse of State Emblems, Seals and Symbols, Madras High Court has issued a set of directions to ensure the compliance of the State Emblem of India (Prohibition of Improper Use) Act, 2005 and the Rules framed thereunder.

A single-judge bench of Justice S.M. Subramaniam opined that not even a single case has been registered by Tamil Nadu Police against unauthorised use of such Emblems, Flags, names of departments and other Symbols on vehicles or elsewhere. The court made the above inference after referring to the status report filed by DGP who was suo motu impleaded. According to the status report, apart from registering cases under Motor Vehicles Act and for impersonation of public servants under Sections 170 and 171 of IPC, the Police 'miserably failed to register any case under the Act 50 of 2005', noted the court.

"When such practices are allowed, naturally any person who is not authorised for such usage is tempted to use, as law enforcing authorities are failing in their duty to implement the provisions of the Act", noted the court.

The court issued the directions in a case where a former Member of Parliament, R. Anbarasu, lodged a formal complaint by affixing the Indian National Emblem in his letter pad. After the receipt of the said complaint by the Commissioner of Police,  the original (now-deceased) writ petitioner was arrested and kept in custody for 21 days. Though the criminal case was quashed by Madras High Court in 2012, the son of the original petitioner impleaded himself and decided to pursue the issue of illegal use of Emblems on account of the hardships faced by his father. M. Gagan Bothra, the son, also stated that the complaint was lodged by the former MP due to a dispute arising out of a loan given by his father.

Today, Madras High Court noted that the misuse of such symbols, seals and emblems primarily aims at escaping from the clutches of law and avoiding legal consequences. It was brought to the notice of the court by Central Government Standing Counsel that even Bank officials use the Government of India Emblem and Name in their vehicles and in letter pads. Therefore the court noted as follows:

"It is most unfortunate that even few former Constitutional Authorities and Ex-Legislators are misusing the Emblems, Flags, Names etc., by affixing in their vehicles and in letter pads...The Oath taken to uphold the sovereignty and integrity of India and maintaining confidentiality and performance of duties are not only restricted to the term of office as it involves many constitutional duties and obligations to protect the sovereignty and integrity of India."

Further, the court remarked that the authorised use of Emblems, Names etc will improve the efficiency and transparency in public administration and public services. The Statement of Objects and Reasons of the 2005 Act includes a statement as given below: "...The State Emblem of India being the official seal of the Government, its use on any document or thing tends to create an impression that it is an official document or thing of the Government. Therefore, there is a need to prevent its misuse by unauthorised persons."

Referring to the Statement of Objects and Reasons of the Act and Rule 10 of the State Emblem of India (Regulation of Use) Rules, 2007, the court observed that no former functionaries, like former Members of Parliament, former Members of Legislative Assembly, retired officials of Commissions or  Committees, Public Sector Undertakings, Banks, Panchayati Raj Institutions, Parishads, Non-Government Organisations, Universities are authorised to use the Symbols, Emblems, Stickers, Flag, Names of the Institution or Government Names, etc., in their vehicles or in their letter pads or in the buildings. However, the court lamented that this was not the current factual situation and emblems have been falsely affixed even by Commissions without prior approval under the Act and Rules.

"Pertinently Public servants even the last grade servants/officials are using department Names, Emblems etc., in their vehicles. More specifically, people are commonly witnessing that in vehicles including two-wheelers, names of the Secretariat, High Court, Police, Press, Government and its undertakings and other Department names are displayed mainly with an idea to escape from the Traffic offences and Violations. Many associations or body of persons are also using their Emblem in a bold manner for the purpose of threatening the common man and the law enforcing authorities, mostly with an ill motive to escape from the clutches of law", observed the court

The court also agreed with the submission of the writ petitioner that the Tamil Nadu Government was lukewarm about initiating action against the former MP under the Act and Rules, even after they received communication to that effect from the Central Ministry of Home Affairs in 2013.

Taking into account all of the above, the court decided to issue a few directions to prevent the misuse. The gist of the directions are listed below:

• Tamil Nadu DGP must issue wide publications in press and media so that concerned individuals can remove the unauthorised use of emblems, flags, seals, names, stickers etc. within a period of one month. Post the expiry of one month, criminal action will be initiated and the offenders will be prosecuted.
• Police officials and other competent authorities must be sensitised about securing information about offences under the Act and initiate appropriate action against the offenders by conducting initial investigation. The DGP has also been asked by the court to issue directions to subordinate police officials in Tamil Nadu to ensure the compliance of the Act and register criminal cases upon verifying the genuineness of information/ complaints received.
• DGP is also directed to issue appropriate circular/instructions for implementation of Act and Rules, to all Police officials, within a period of two weeks from the date of uploading of the order copy. The court also mandated that the said communication must include the procedures to be followed for registration of cases by the competent authorities.

Accordingly,  the writ petition was disposed off since no relief could be granted to the deceased original writ petitioner. The matter has been posted under the caption "For Reporting Compliance" on 21st January, 2022.

Court's Findings

The court observed that the State Emblem of India (Prohibition of Improper Use) Act, 2005 does not contemplate that complaints should be strictly in writing. The Act also affords an option for registering suo motu complaints.

In this backdrop, the court mentioned that it was 'painful' to record that 'not even a single case' has been registered in the entire State of Tamil Nadu under the Act and Rules.

"Section 3 of the Act 50 of 2005 [State Emblem of India (Prohibition of Improper Use) Act, 2005] in clear terms contemplates that, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government, or as the case may be, the State Government, without the previous permission of the Central Government or of such officer of that Government as may be authorised by it in this behalf. Explanation to Section 3 of the Act 50 of 2005 states that ''For the purposes of this section, "person" includes a former functionary of the Central Government or the State Government."

On the other applicable statutory provisions, the court pointed out that Section 4 of the 2005 Act deals with the Prohibition of use of emblem for wrongful gain. Along with Rule 10 of the State Emblem of India (Regulation of Use) Rules, 2007, the court remarked that Rule 7, 8 & 9 describes the restrictions on the use of the emblem on vehicles, public building and for other purposes based on the authorities specified in Schedules.

Case Title: S.Mukachand Bothra (Deceased) & Anr v. The Central Government & Ors.

Case No: W.P.No.14697 of 2014

Citation: 2022 LiveLaw (Mad) 5

Appearances: For Petitioner- Mr. M. Gagan Bothra, Petitioner in Person

For Respondents 1 & 2: Mr.V. Balasubramaniam

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