Why waving of black flags is a crime?

It defies all logic that in a country where burning an effigy of a political leader or official does not constitute a criminal offence, a simple protest by waving black flags leads to arrest and incarceration. Waving black flags is probably the most innocuous of all ways to express dissent in a democracy, but our police and the administrations seem to be in no mood to accept it as permissible behaviour. Hundreds of people are put behind bars almost daily for staging such protests and the security personnel often deal ruthlessly with the ‘offenders’ dragging them by their collar and assaulting before hauling them up in their fortified vehicles. The offenders are booked under various sections such as 143, 145, 147, 149, 151, 341, 504, 506, some of which are even nonbailable, although apparently none of them makes any reference to black flags.

The case of 11 Lucknow University students, two of them girls, being sent to 14-day judicial custody allegedly for breaching security and showing black flags to chief minister Yogi Adityanath last year had attracted national attention. In the FIR, the police also pressed section 7 of Criminal Law Amendment Act, which made the process of obtaining bail difficult and may even prove detrimental to the students’ future.

Why are our politicians and administrations allergic to black flags? That black is the colour of the flag used by Islamic terrorists can’t be the reason because that is a relatively new phenomenon. The hatred for black flags dates back to much before the emergence of ISIS. The only possible reason could be intolerance towards dissent, which our politicians have in abundant measure, particularly when it comes to those of the saffron hues. The red loyalists are no better, as is increasingly demonstrated by the Kerala government, particularly the Stalinist chief minister, for whom dissent is apparently something that deserves nothing less than ‘capital punishment’. In fact, the state is witnessing an Emergency-like situation in view of the highly volatile Sabarimala issue and the Pinarayi police is baring its most ugly face yet.

Waving black flags should actually be much more acceptable to our politicians than effigy burning as the latter involves more abrasive ways of insult, including garlands made of chappals, black paint and all possible symbols of scorn. More creative protesters press into service coffins and wreath, funeral prayers and pyres. The police can’t do anything about it because the court has held that there is no provision in the Indian Penal Code which makes the burning of effigies a punishable offence. The police can, at best, charge protesters with rash and negligent handling of fire or combustible matter.

Interestingly, the case that produced such a ruling had BJP maverick Subramaniam Swamy at its centre. It related to a case registered against the district secretary of a political party in Tamil Nadu, who was a law graduate, for burning the effigy of Subramanian Swamy. When the accused applied for enrolment as an advocate with the Bar Council of Tamil Nadu and Puducherry, the council put his application on hold citing the criminal case pending against him. The question before Justice Ramasubramanian was whether the participation in an agitation for a political cause, and the burning of an effigy as part of the agitation, could be taken to be something that will make the offender a person with criminal background so as to disentitle him from getting enrolled as an advocate. The judge answered the question in the negative, clarifying that by burning Swamy’s effigy, the lawyer did not commit a criminal offence.

The judge said that the burning of effigies has its roots in history, culture as well as the religion of several countries throughout the world and referred to Ram Leelas performed in various parts of the country, culminating with the burning of Ravana’s effigy as symbolsing the triumph of good over evil. It was the British who made it as part of the criminal code. As per history, British Catholic dissident Guy Fawkes and 12 of his friends hatched a conspiracy to blow up King James I during the opening of Parliament on November 5, 1605. But, the assassination attempt was foiled the previous night, when Fawkes was discovered in a cellar below the House of Lords. Londoners immediately began lighting bonfires in celebration of the foiled plot. British parliament later declared November 5 as a public day of thanksgiving. Since then, Guy Fawkes Day, also known as Bonfire Night, is celebrated in one form or the other. When British drew up the Indian criminal procedure code in 1860, they made it a point not to make effigy burning a punishable offence.

Now, black flag has become ubiquitous, with an emoji being added to the list of expressionable emotions. The black flag emoji is used to indicate anarchism, grief and sorrow. Black flag was also a punk band, which is supposed to have influenced every band that claimed punk status after 1980s.

It is high time our politicians and police got themselves updated about black flags and for the courts to pronounce a judgment similar to the one in burning of effigies.