Legislation for prevention of Improper Use of of certain emblems and names

Article 51A(a), Constitution of India provides that it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.

A Consultation Paper (July 2001) on EFFECTUATION OF FUNDAMENTAL DUTIES OF CITIZENS observed –

“The National Flag and the National Anthem are symbols of our history, sovereignty, unity and pride. If a citizen of India by any overt or covert act shows disrespect to the Constitution, the National Anthem or the National Flag, it would be not only an anti-social and anti-national activity but it would also spell doom to all our rights and very existence as citizens of a sovereign nation. Each citizen must therefore not only refrain from any such activity but also do his best to prevent any miscreant trying to show disrespect to our national symbols.”

A. Emblems and Names (Prevention of Improper Use) Act, 1950 & Emblems and Names (Prevention of Improper Use) Rules, 1982 enforce this fundamental duty.

The aforesaid legislation aims to prevent the improper use of certain emblems and names for professional and commercial purposes.

Section 2 (a) defines “emblem” as any emblem, seal, flag, insignia, coat-of-arms or pictorial representation specified in the Schedule.

Examples of emblem under the Schedule 

  • The name, emblem or official seal of the United Nations Organisation;
  • The name, emblem or official seal of the World Health Organisation;
  •  The Indian National Flag;
  • The names of “Ashoka Chakra” or “Dharma Chakra” or the pictorial representation of Ashoka Chakra as used in the Indian National Flag or in the official seal or emblem of the Government of India or of any State Government or of a Department of any such Government; etc.

The Schedule has more than 30 emblems which have been added from time to time. (Section 8 empowers the Central Government to amend the Schedule).

Section 3 provides that no person shall, except in such cases and under such conditions as may be prescribed by the Central Government use, or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or, any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorised in this behalf by the Central Government.

Rule 8 prohibits use or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trademark or design – any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorised in this behalf by the Central Government.

Exceptions

Rule 8 carves out the exceptions and allows use of emblems etc. mentioned in the Schedule in following cases —

  • the use thereof by the agencies, bodies or persons to whom the name or emblem belongs;
  • the use thereof by the Central Government or any State Government to whom the name or emblem belongs;
  • the issue of postal stamps, coins or other commemorative items brought out by the Central Government or a State Government in honour of any of the persons or institutions whose names are included in the Schedule;
  • the use of the names of persons included in the Schedule by bodies set up by the Central government or State Government for propagation of the ideals for which they stood and lived;
  • the authorship, production, publication, exhibition or transmission by any medium for academic, artistic, biographical, cultural, educational, scientific or spiritual purposes with the previous permission of the Central Government and subject to such conditions as the Central Government may lay down while granting such permission.

B. State Emblem of India (Prohibition of Improper Use) Act, 2005

It prohibits the improper use of State Emblem of India for professional and commercial purposes. Section 2 (b) defines”emblem” as the State Emblem of India as described and specified in the Schedule to be used as an official seal of the Government.

Section 3 prohibits improper use of emblem. Section 4 prohibits use the emblem for the purpose of any trade, business, calling or profession or in the title of any patent, or in any trade mark or design, except in such cases and under such conditions as may be prescribed by any person.

Section 7 makes provision for the penalty. For contravention of Section 3 –

  • with imprisonment for a term which may extend to two years, or with fine which
    may extend to five thousand rupees, or with both or,
  • if having been previously convicted of an offence under this section, is again convicted of any such offence, he shall be punishable for the second and for every subsequent offence
    with imprisonment for a term which shall not be less than six months, which
    may extend to two years and with fine which may extend to five thousand rupees.

Any person who contravenes the provisions of Section 4  shall be punishable for such offence with imprisonment for a term which shall not be less than six months, which may extend to two years and with fine which may extend to five thousand rupees.

State Emblem of India (Regulation of Use) Rules, 2007

Section 11 of State Emblem of India (Prohibition of Improper Use) Act, 2005 empowers the Central Government to make rules to carry out the purposes of this Act.

Rule 4
  • A State Government may adopt the emblem as the official Emblem of the State or the Union territory, as the case may be, without obtaining the approval of the Central Government.
  • Where a State Government proposes to incorporate the emblem or any part thereof in the Emblem of that State or Union territory, as the case may be, it shall do so after obtaining the prior approval of the Central Government and shall get the design and lay out approved by the Central Government.

Rule 8 permits display of the emblem on –

  • The Rashtrapati Bhawan, Parliament House, Supreme Court and Central Secretariat buildings;
  • Raj Bhawan or Raj Niwas and State Legislature, High Courts and Secretariat buildings of the States or the Union territories that have adopted the emblem or have incorporated the emblem in the Emblem of the State or the Union territory;
  • The premises of India ‘s Diplomatic Mission abroad and the heads of Missions may display the emblem at their residences in the countries of their accreditation.
  • The buildings occupied by India ‘s Consulates abroad at the entrance doors thereof and on the residences of Heads of consular posts in the countries of their accreditation.

C. Trademarks Act,1999

Section 9(2) (d) ) provides that A mark shall not be registered as a trade mark if its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in research and writing on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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