The unveiling of the national emblem cast on the roof of the new Parliament building by Prime Minister Narendra Modi on Monday sparked a huge controversy, to say the least.
Several political parties criticised the Centre for different reasons, including not having the Opposition on the list of invitees and the absence of interfaith rituals.
The political outrage aside, the Modi government is also being called out for modifying and ‘distorting’ the emblem. Many people took to social media platforms to express that the emblem looked different from the original. Many came down heavily on the government alleging that, unlike the original, the Ashoka Lions in the new emblem are baring their fangs.
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The ongoing outrage has, however, raised an important question, if the central government, in fact, has the powers to make such modifications or change the state emblem.
The relevant law to be considered with regard to the state emblem would be the State Emblem of India (Prohibition of Improper Use) Act, 2005, and the State Emblem of India (Regulation of Use) Rules, 2007, which specifically deal with our state emblem.
The statement of objects and reasons of the 2005 Act states that earlier the use of the State Emblem of India was governed by a set of executive instructions, which did not have any legal sanction, and the Act had to be enacted to prevent the State Emblem’s misuse by unauthorised persons.
According to the 2005 Act, the State Emblem of India is as described and specified in the schedule to be used as an official seal of the government.
The schedule of the Act states that the State Emblem of India is an adaptation from the Sarnath Lion Capital of Asoka which is preserved and shall conform to the designs as set out in Appendix I or Appendix II.
The design specified in Appendix I for reproduction in small sizes, such as for use in stationery, seals and die-printing.
The question is, when there’s a statute that specifically states that the State Emblem should conform to the designs set out in the Act, does the Centre have any powers to make changes to the emblem.
Section 6(2)(f) of the same Act further provides the Centre with the power ‘to do all such things including the specification of design of the emblem.
The design specified in Appendix II meant meant for reproduction in bigger sizes.
The provision specifically states, “Subject to the provisions of this Act, the central government shall have powers to do all such things (including the specification of design of the emblem and its use in the manner whatsoever) as the Central Government considers necessary or expedient for the exercise of the foregoing powers.”
Therefore, according to this provision, the government has the power to make changes in the design of the emblem.
But one needs to note, that it only refers to change in the design and not change of the state emblem itself. India Today spoke to a few legal experts in this regard.
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Senior Advocate Sanjay Hegde, practicing at the Supreme Court of India, said that there is no emblem set out in the Constitution of India. The emblem design is set out in Appendix I and II of the 2005 Act. Amending the Act, the government can have a new emblem if it so desires.
Senior Advocate Sanjoy Ghose, practicing at the Supreme Court and the Delhi High Court, referring to the 2005 Act, said that while the law permits the Central Government to amend or alter or modify the national emblem, it should always be remembered that these are solemn symbols of the Republic and have great historical significance. Therefore, in any such matter the government should proceed with extreme care and caution, and such change should only be resorted in rarest of circumstances.
Advocate Radhika Roy, lawyer at the Delhi High Court, said that the 2005 Act, which prohibits the improper use of the emblem, grants the Central Government the power under Section 6(2)(f) to institute changes in the specification of the design of the emblem which is described and specified under the schedule, and regulate manner of its use. The schedule states that the State Emblem of India must conform to the designs set out in Appendix I or II.
Roy said, “What flows from this is that not only does the Central Government have the power to stipulate the specification of the design of the emblem, but there is nothing that prevents the Central Government from changing the State Emblem completely by way of an Amending Act. That is, of course, subject to approval by both the Houses, but it puts into the perspective the precariousness of our national symbols that can be changed at any point of time at the discretion of the Legislature.
Faizan Mustafa, vice-chancellor of the NALSAR University of law, Hyderabad said, “Though the constitution as such doesn’t have any specific provisions dealing with this, but Article 51A, as well as National Honors Act, specifically defines that how an Indian should respect and the honour our national symbols which includes the flag and national anthem as well.”
Echoing the same sentiments, a law professor who didn’t want to be named added, “If an elected government wants to make certain amendments it can go ahead and do the same, but the constitution as such doesn’t have a particular provision of punishment if one does that.”
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