The government has proposed increasing the fine for illegal and improper use of national emblems for commercial gains from Rs 500 to Rs one lakh — the suggested change also includes jail time and a fine of Rs 5 lakh for repeat offenders — in an attempt to crack down on their misuse.
The Emblems and Names (Prevention of Improper Use) Act, 1950, restricts the use of the national flag, the coat-of-arms used by a government department, the official seal of the President or Governor, the pictorial representation of Mahatma Gandhi and the Prime Minister, and the Ashoka Chakra.
However it is considered inadequate.
The other change being considered is that in case there is a prosecution, the onus to prove that the alleged contravention or alteration was lawfully authorized shall be on the violator. Right now, that onus is on the state.
The Department of Consumer Affairs has placed its recommendations to amend the law on its official website and invited public views till December 20.
Under section 3 of the Act no person can commercially use any government trademark or design, name, emblem, official seal or pictorial representation or any colourable imitation of the same, without Centre’s previous permission. The law is applicable to Indian citizens living abroad too.
Officials with knowledge of the matter said the law in the present form is ineffective. ‘Even if someone is caught, he or she pays a fine of ~500 and gets away without any punishment. The law is hardly a deterrent as instances of people flouting it more than once have come forward,’ a government officer said on condition of anonymity.
In the past five years, 1767 prosecutions have been initiated against people across the country and the cases are pending trial, the officer quoted above said. ‘We have received complaints against gram panchayat officials in Karnataka , a mineral water company in Gujarat and tour operators in Delhi and Punjab,’ said another official familiar with the matter who asked not to be named.
Interestingly, as far back as 1975, the law was challenged on the grounds that it restricts commerce. The Supreme Court at that time upheld the law and said the restrictions were reasonable and did not interfere with the right to practice any profession.
Senior Supreme Court advocates Nidhesh Gupta and Aishwarya Bhatti said the new provisions will make the law more stringent and appears to be in line with what the government has done with other laws such as the Motor Vehicle Act.
‘The proposed amendments are crucial as they take on rampant abuse and unauthorized usage of national emblems,’ said Bhatti.
Gupta said the significant changes are the insertion of a provision that puts the onus on the accused to establish the usage of seals was legal.
‘Unlike the criminal law where the prosecution has to prove the case against an accused beyond a reasonable doubt, here the prosecuting agency only has to establish the usage. Thereafter, the accused will be burdened to prove the usage was lawful,’ he explained. This is similar to the provisions under the stringent anti-drugs law where the accused has to demonstrate innocence.