The Madras High Court on Monday criticised hyper-nationalism while quashing criminal proceedings and ruling that cutting a cake with a tricolour flag and Ashoka Chakra on it was not unpatriotic or an insult to the national honour, Bar and Bench reported.

“There is no doubt that nationalism in a democracy like India is very vital,” the court observed. “But, hyper and surfeit adherence to it goes against the prosperity of our nation from all its past glory.”

The single bench of Justice N Anand Venkatesh quashed the criminal proceedings initiated by a magistrate in the 2013 case in Coimbatore. During a party in the city on Christmas Day, a large cake with the Indian map on it was cut and eaten by 2,500 guests. The Coimbatore collector, the deputy commissioner of police as well as several religious leaders and members of NGOs had attended that party.

D Senthilkumar of the Hindu Public Party had registered a complaint alleging that the act of cutting the cake with the Indian flag on it was an offence under Section 2 of the Prevention of Insults to National Honour Act, 1971. This section provides for imprisonment up to three years or a fine, or both, for insulting the Indian Flag or the Indian Constitution.

The magistrate then initiated criminal proceedings in the matter. The state government challenged this in the High Court, contending that no offence was made out. It further alleged a proper sanction was not obtained before initiating the case, and that there were “procedural irregularities” involved in the magistrate’s direction to register a first information report in the matter.

During the hearing on Monday, the Madras High Court agreed that procedure followed by the magistrate was “patently illegal”. Justice Venkatesh proceeded to observe that patriotism was not determined by a gross physical act. Rather, the crucial test for it would be the intention behind an act.

“A patriot is not one who only raises the flag, symbolises his national pride and wear it on his sleeve, but also, a person who bats for good governance,” he said. “The symbolisation of national pride is not synonymous with patriotism, just like how cutting a cake is not unpatriotic.”

Based on this perspective, the court said it was unlikely that the guests who attended the function were trying to bring down national pride by cutting the cake. “Will they be feeling great pride in belonging to this great nation, or would the pride of India have come down on the mere cutting of a cake during the celebration?” the judge said. “Without any hesitation, this Court can hold that the participants would have felt only the former and not the latter.”

The Madras High Court gave the example of Republic Day and Independence Day celebrations and how persons participating in them often wear national flags. “It is not as if the participants continue to possess these flags forever after such an event,” the court pointed out, “and its unlikely that the paper flags may become part of waste paper.”

“Will this mean that each of the participants has insulted the national flag and should be proceeded against under Section 2 of the Act?” it asked. “The obvious answer is in the negative.”