Govt should take a relaxed view of 'violations' of flag code in products sold in foreign countries: Experts

The article by Neha Alawadhi was published in the Economic Times on 13 January 2017. Sunil Abraham was quoted.

That’s the view of industry observers and lawyers familiar with internal business practices and regulation.

India’s External Affairs Minister Sushma Swaraj had on Wednesday tweeted that India visas for Amazon executives may be withdrawn unless the America headquartered ecommerce giant apologised for its Canadian site selling doormats in India flag colours.

The point, lawyers and experts say, is that Indian law itself protects Amazon from being prosecuted in this case. India recognises companies like Amazon (whether in India or Canada), as intermediaries, who are exempt from liability under  the IT (Information Technology) Act, because a third-party seller was selling those doormats.

Plus, Indian law does not apply outside the country, and a global ecommerce company has millions of products for sale in scores of marketplaces.

“Neither Prevention of Insults to National Honour Act, 1971nor the Flag Code applies outside India,” said Virag Gupta, a Supreme Court advocate specialising in cyber law.

The only thing the Indian government can do, said Sarvjeet Singh, programme manager, Centre for Communication Governance, National Law University, Delhi, is to ask the company to take down the listing.

That Amazon had already done, he noted. “Given the volume of traffic and usage and the number of sellers, it is impossible for a company to monitor all the goods listed,” Singh added, and said that’s why the IT Act recognises that companies like Amazon are intermediaries.

Many experts also wondered whether India’s flag code is ready for a reset, aligning it more with today’s less statist views on such matters.

The code calls for a three-year jail term, or a fine, or both for violations. In democracies such as the United States, Canada and the Netherlands, national flag colours in product design does not invoke legal punitive responses. “In a lot of these countries, where issues about Indian flag code violation have come up, these activities are legal and covered by freedom of expression guarantees and we should be aware of these cultural contexts before making statements,” Singh said.

Others feel the flag code smothers creativity. “Repealing most flag-related regulation will unlock creativity, encourage derivative works and remix and greatly increase the visibility of the Indian flag in public places. This in turn will foster a sense of community, national pride and social cohesion,” said Sunil Abraham, executive director at Bengaluru-based research organisation, the Centre for Internet and Society.