Jailed for the Tricolour: What the Law Actually Says
By Squirrels·
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Jailed for the Tricolour: What the Law Actually Says
Two activists from Citizens for Justice and Peace (CJP) — Saurav Das and Ashutosh Ranka — were sent to five days of judicial custody at Delhi's Tihar Prison on October 14, 2026, after waving the national flag at Jantar Mantar. The central legal question: can an Indian citizen be arrested for peacefully displaying the Tricolour at a public location?
The images spread quickly: two men holding India's national flag, surrounded by police, and then, within hours, sent to Tihar Jail. The incident has drawn condemnation from opposition leaders and raised a question that cuts through the political noise — what does Indian law actually say about protests, national symbols, and the boundaries of preventive detention?
This explainer examines the legal framework, the specific sequence of events at Jantar Mantar, and the broader constitutional questions the case raises.
What Happened at Jantar Mantar on October 13–14, 2026?
Jantar Mantar in New Delhi has historically served as a designated protest site — one of the few locations in the capital where demonstrations were permitted under regulated conditions. In recent years, the Delhi Police denotified it as an approved protest zone, effectively requiring demonstrators to obtain specific permissions before gathering there.
On October 13, CJP co-conveners Saurav Das and Ashutosh Ranka, along with a third member Ajinkya Shinde, arrived at Jantar Mantar and unfurled the Tricolour while raising what witnesses described as patriotic slogans. Police detained all three. Shinde was subsequently released. Das and Ranka were produced before a court, which remanded them to five days of judicial custody at Tihar Prison.
Delhi Police, in statements reported by New Indian Express, said the protesters had been "bound down" — a preventive legal process — in prior cases, and were arrested under preventive provisions citing "alleged repeated attempts to disturb public peace and instigate others."
CJP's own account, published by Kerala Kaumudi and Newsable, disputed this framing: the organisation said its members were detained specifically for waving the national flag and raising patriotic slogans, not for any act of violence or disorder.
What Is the Legal Basis for the Arrests?
Under Indian law, police have two primary avenues to arrest or detain protesters: (a) substantive criminal charges, and (b) preventive provisions.
Preventive detention provisions most commonly cited in Delhi protest cases include Section 107 and Section 151 of the Code of Criminal Procedure (CrPC) — now replaced by corresponding provisions in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which came into force in July 2024. Section 151 (and its BNSS equivalent) permits police to arrest a person without a warrant if there is credible information that they are about to commit a cognisable offence, and if the commission cannot be prevented otherwise.
The critical phrase is "about to commit." Preventive provisions are prospective — they are meant to prevent a future breach of peace, not punish past conduct. Using them to detain individuals who have already completed a peaceful act — such as waving a flag — tests the provision's intended scope.
"Bound down" proceedings, referenced by police in this case, refer to a magistrate's order requiring a person to furnish a bond for good behaviour or keeping the peace. Violation of such an order can trigger arrest. Whether Das and Ranka had valid prior bound-down orders against them, and whether their conduct at Jantar Mantar constituted a violation of those orders, are the factual questions that the court will assess.
Does the Law Protect the Right to Display the National Flag?
Yes — with defined conditions.
The Prevention of Insults to National Honour Act, 1971 criminalises acts that desecrate or show disrespect to the national flag, the national anthem, or the Indian Constitution. It does not restrict the display of the flag; it protects the flag from disrespect.
The Flag Code of India, 2002 governs the use of the national flag. It specifies conditions for display — size, material, placement, and occasions — but does not prohibit citizens from displaying the Tricolour. A 2022 amendment to the Flag Code permitted machine-made polyester flags and extended the right of private citizens to display the national flag at home on all days of the year, not just on national holidays.
Notably, nothing in either the Flag Code or the 1971 Act suggests that holding or waving a Tricolour at a public location constitutes a criminal act. The legal question in the CJP case, therefore, is not about the flag itself — it is about the location (a denotified protest site) and whether the manner of the protest triggered preventive provisions.
Why Did the Denotification of Jantar Mantar Matter?
The status of Jantar Mantar as a protest site is central to understanding the legal exposure of the CJP activists.
For decades, Jantar Mantar served as Delhi's primary protest zone, used by farmer unions, civil society groups, political parties, and individual citizens alike. The site's denotification — the removal of its designation as an approved protest location — means that demonstrations there now require prior police permission under the Delhi Police Act and relevant Supreme Court orders governing protest regulation in the capital.
The Supreme Court of India, in Ramlila Maidan Incident v. Home Secretary, Union of India (2012), affirmed that the right to peaceful protest is a fundamental right under Articles 19(1)(a) and 19(1)(b) of the Constitution. However, the Court also acknowledged that reasonable restrictions on the location and manner of protests are constitutionally permissible under Articles 19(2) and 19(3).
The practical effect: if a protest site has been denotified and no permission was obtained, police have a legal basis — at minimum for detaining protesters — even if the conduct at the site was entirely peaceful. Whether five days of judicial custody at Tihar represents a proportionate response to peaceful flag-waving at a denotified site is a separate question of judicial discretion.
What Are the Multiple Perspectives on This Case?
The Delhi Police position, as reported by New Indian Express, is that the arrests were not about the national flag but about the protesters' alleged history of attempting to disturb public peace, their bound-down status, and the denotified status of the protest site. The flag, in this reading, is incidental.
The CJP's position, stated through spokesperson Dipke and reported across multiple outlets, is that its members were engaged in a purely peaceful, patriotic act — waving the national flag — and that characterising this as a threat to public order conflates symbolic expression with disruption. Dipke explicitly compared the situation to colonial-era restrictions on displaying the Indian flag.
Opposition political leaders have framed the incident in constitutional terms. Leader of the Opposition Rahul Gandhi, in a post on X cited by Hindustan Times, said: "Waving the Tricolour at Jantar Mantar in a peaceful protest is not a crime. Jailing youth for it is an act of cowardice." Former Delhi Chief Minister Arvind Kejriwal, quoted by New Indian Express, asked: "Is waving our own flag a crime?" Congress additionally stated that Jantar Mantar "belongs to the people" and that the party would "reclaim it."
Legal observers [UNVERIFIED — no specific lawyer statements in available sources] would likely focus on the proportionality question: even if the arrest was technically defensible under preventive provisions, a five-day judicial custody remand for a peaceful act involving the national flag raises questions about whether the judicial response matched the nature of the alleged breach.
What Does India's Protest Rights Framework Actually Permit?
The constitutional right to peaceful assembly is guaranteed under Article 19(1)(b) of the Constitution of India. This right is subject to reasonable restrictions under Article 19(3) — which permits the state to impose conditions in the interests of sovereignty, public order, or morality.
Key judicial precedents that define the framework:
**Ramlila Maidan Incident v. Home Secretary (2012):** The Supreme Court held that the right to peaceful protest is fundamental and that excessive state response — including midnight crackdowns — can itself violate constitutional rights.
**Shaheen Bagh v. Union of India (2020):** The Court acknowledged the right to protest but also held that indefinite occupation of public roads was not an absolute right and could be regulated to balance competing interests.
**Amit Sahni v. Commissioner of Police (2020):** The Court reiterated that designated protest sites exist to balance the right to protest with the right of citizens to use public spaces.
The framework that emerges from these decisions is not binary. The right to protest exists; so does the state's right to regulate its location and manner. The contested space — where the CJP case now sits — is whether denotification of Jantar Mantar and the use of preventive custody provisions constitutes a reasonable restriction or a disproportionate response to peaceful expression.
What Should the Legal Process Look Like From Here?
Based on established judicial practice in protest-related detention cases, the following process applies:
Bail application: Das and Ranka, or their legal representatives, can apply for bail before the relevant sessions court or high court. Given the non-violent nature of the alleged conduct, bail is the norm in such cases.
High Court challenge: If bail is denied or conditions are excessive, a writ petition to the Delhi High Court challenging the detention on constitutional grounds (Articles 19 and 21) is available.
Magistrate review of bound-down orders: If the arrests rest on prior bound-down proceedings, those underlying orders can be challenged for validity and proportionality.
Suo motu cognisance: In high-profile cases involving fundamental rights, superior courts have the power to take up the matter independently — though this is discretionary and rare.
CJP has indicated protests will continue across the country if demonstrations remain barred at Jantar Mantar, which suggests the organisation intends to pursue both legal and public advocacy channels simultaneously.
FAQ
Is it illegal to wave the Indian national flag at a protest?
No law in India prohibits waving or displaying the national flag. The Flag Code of India, 2002, governs the conditions of display but does not restrict citizens from holding the Tricolour. The Prevention of Insults to National Honour Act, 1971, penalises disrespect to the flag — not its display. Arrests in the CJP case were made under preventive detention provisions related to the location of the protest, not the flag itself.
What is a 'bound-down' order and how does it relate to this case?
A bound-down order is issued by a magistrate under the Code of Criminal Procedure (now Bharatiya Nagarik Suraksha Sanhita, 2023) requiring a person to furnish a bond for good behaviour or keeping the peace. If police had prior bound-down orders against Das and Ranka and determined that their appearance at a denotified protest site violated those orders, that provides the technical legal basis for arrest — separate from the question of whether the flag was involved.
Why was Jantar Mantar denotified as a protest site?
The denotification of Jantar Mantar as a designated protest site occurred after the Delhi administration concluded that prolonged protests were causing public inconvenience and traffic disruption. After denotification, protesters are required to obtain explicit police permission before demonstrating there. The Ramlila Maidan and other sites have been used as alternatives.
What is the Citizens for Justice and Peace (CJP)?
CJP is a civil society organisation founded in 2002 that describes its mandate as defending constitutional rights, particularly for minority communities. It has been involved in legal challenges related to citizenship, hate speech, and communal violence. The organisation's co-conveners — Saurav Das and Ashutosh Ranka — are the individuals currently in judicial custody.
What is the constitutional basis for the right to protest in India?
The right to peaceful assembly is guaranteed under Article 19(1)(b) of the Constitution of India, and the right to freedom of expression under Article 19(1)(a). Both rights are subject to reasonable restrictions under Articles 19(2) and 19(3) in the interests of public order, sovereignty, and morality. The Supreme Court has repeatedly held that these rights are fundamental but not absolute.
What happens after five days of judicial custody?
After five days, police may apply for extension of custody, or the accused may be released on bail. If charges are filed, a formal trial process begins. If no substantive charges are filed and bail applications succeed, the individuals would be released. Courts in India routinely grant bail in cases involving peaceful protest absent evidence of violence or serious criminal conduct.
Conclusion
The arrest and judicial custody of CJP's Saurav Das and Ashutosh Ranka for waving the national flag at Jantar Mantar is, at its legal core, a case about the denotification of a protest site and the application of preventive detention provisions — not a case about the Tricolour per se. The flag's presence in the incident has given the story its symbolic charge; the legal substance is narrower and more procedural.
What the case does illuminate is the tension in India's protest rights framework: the constitutional guarantee of peaceful assembly sits alongside a regulatory apparatus that gives police and magistrates significant discretion over where and how that right may be exercised. When that discretion produces a five-day remand to Tihar Jail for peaceful flag-waving, it is a question worthy of judicial scrutiny — and of public attention.
The courts will determine whether the arrests were legally sound. What the record already shows is that the legal framework governing protest in India's capital is contested, consequential, and in active evolution.