The national flag

New Delhi, Nov. 15: The Supreme Court has declined to overturn a Madras High Court order that set two Tamil activists a condition for bail: they must hoist the national flag outside their homes every day for a week.

The duo had already spent six years in jail as undertrials for allegedly trying to burn the Tricolour in April 2003 to protest India’s “failure” to stop the Sri Lankan conflict. The high court bail order, on June 9 this year, triggered controversy because the accused had not been convicted and had to be presumed innocent.

The apex court, however, decided that “there’s no dishonour in hoisting the national flag” and disposed of the appeal by P. Thamizharasan and V. Bharathi — but added that the high court move could not be treated as a precedent in any future case.

“This condition that was imposed by the high court while directing their release (on bail) shall not be treated as a precedent for any purpose,” the two-judge bench said on November 3.

“Erect a flagpole in front of your house and hoist the national flag daily for one week,” the high court had said. The accused were to “with respect hoist the flag” every day at 6am and “with respect settle it down” at 6pm.

Appearing for the appellants, former Union law minister Ram Jethmalani argued that the unusual bail conditions gave rise to the presumption that his clients were guilty. The petitioners also argued that their fundamental rights — which have priority over fundamental duties such as showing respect to the national flag —were being violated.

The high court had set a second bail condition: the accused must perform community service for three hours a day for a week at a local orphanage. The apex court set this aside.

“It is difficult to appreciate… why such a condition has been imposed by the high court. The condition… is totally unsustainable in law,” the apex court said.

The two appellants and six others were arrested on April 25, 2003, while allegedly trying to burn the Indian and Sri Lankan flags outside the Coimbatore collectorate. After the trial court refused bail, the high court released all the eight but said it was setting the conditions to make them realise their obligation to respect national symbols.

Two of the eight pleaded for modification of the conditions, but this was rejected on July 1. They then moved the Supreme Court.

On October 13, the apex court said it would look into whether lower courts and high courts could impose odd and irrelevant conditions while granting bail.