The right to unfurl the National Flag freely and with respect and dignity is a Fundamental Right of a citizen under Article 19(1)(a) of the Constitution, and the same is subject to the reasonable restrictions under clause (2) of Article 19
Case name: Union of India vs. Naveen Jindal & Anr
Citation: Civil Appeal Nos. 2920 of 1996 and 453 of 2004 [Arising out of S.L.P. (C) No. 15849 of1994]
Court: Supreme Court of India
Bench: Hon’ble Chief Justice of India Shri Justice V N Khare
Shri Justice Brijesh Kumar
Shri Justice S B Sinha
Decided on: January 23, 2004
Relevant statues: The Constitution of India
Brief Facts and Procedural History:
- Naveen Jindal (respondent), is a joint managing director of a public limited company incorporated under the Companies Act. He being the in charge of the factory situated in Madhya Pradesh was flying National Flag at the office premises of his factory. He was not allowed to do so by the government officials on the ground that the same is prohibited under the Flag Code of India.
- Questioning the said action, the respondent filed a writ petition before the High Court on the ground that flying of national flag by a citizen with respect and dignity is a fundamental right and thus cannot be prohibited by any law. It was also contended that the Flag Code is not a law and therefore cannot impose reasonable restrictions under the guise of clause (2) of Article 19 of The Constitution of India.
- The appellants (Union of India) on the other hand contended that the Emblems and Names (Prevention of Improper Use) Act, 1950 empowers the Central Government to impose restrictions on the use of National Flag and the same would come under the purview of clause (2) of Article 19 of The Constitution of India.
- The High Court held that as long as the National Flag is flown in a respectful manner by the citizen, no restriction can be imposed on the basis of the instructions contained in the Flag Code as the Code is not a law within the meaning of Article 19(2) of the Indian Constitution.
- Aggrieved by the decision of the High Court the appellants thus preferred the present appeal before the Supreme Court of India.
Issues Before the Court:
- Whether the Flag Code is a law within the meaning of Article 13(3)(a) of the Constitution of India?
- Whether the right to fly national flag by Indian citizen is a fundamental right within the meaning of Article 19 (1)(a) of the Constitution of India?
- Whether the right to fly the national flag is to be considered in the context of Fundamental Duties?
Ratio of the Court:
- The court opined that the National Flag is the emblem of national self-respect. It is an expression of the sense of freedom of a nation and fosters national spirit. The court observed that from time immemorial, people have laid down their lives for their flags. Indeed, there is something so compelling in this piece of cloth, called the National Flag, that people make even the supreme sacrifice for its sake. The National Flag stands for the whole nation, its ideals, aspirations, its hopes and achievements. It is a beacon showing to its people the path when their very existence is threatened. It is at this time of danger that this much length of cloth inspires people to unite under its umbrella and urge them to defend the honor of their motherland.
- It is seen from the discussions of the Constituent Assembly that the national flag is the most revered object in our society. National anthem, National Flag and National Song are secular symbols of the nationhood. They represent the supreme collective expression of commitment and loyalty to the nation as well as patriotism for the country. The national flag must be treated with the utmost respect and dignity and to ensure this it is necessary to impose certain reasonable restrictions.
- With regard to the first issue, the court first observed what is law within the meaning of article 13(3)(a). Article 13(3)(a) of the Constitution of India reads thus:Article 13 (3) (a) “Law” includes any Ordinance, order bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.”
- The court discussed various cases to show what can be regarded as a law within the meaning of Article 13(3)(a) of the Constitution of India.
- The court discussed the S.C. Advocates-on-Record Assn. vs. Union of India [(1993) 4 SCC441], case where it was held that the “Constitution is the “will” of the people whereas the statutory laws are the creation of the legislators who are the elected representatives of the people. Where the will of the legislature-declared in the statutes-stands in opposition to that the people declared in the constitution-the will of the people must prevail.”
- In Punit Rai vs. Dinesh Chaudhary [(2003) 8 SCC 204], this Court held that a circular letter as regard determination of caste of a child born from a non-Scheduled Caste Hindu father and a Scheduled Caste mother shall not have the force of the statute. A circular letter is being an administrative instruction cannot be a law within the meaning of Article 13 of the Indian Constitution.
- After relying on the above-mentioned cases this court with regard to the first issue concluded that The Flag Code is a set of executive instructions and executive instructions do not fall within the meaning of law as stated under Article 13(3)(a) of the Constitution of India. An executive instruction cannot be a law as it can be replaced by another set of executive instructions. It was noted that the said Flag Code has been divided into three parts. Part I of the Code contains the description of the National Flag. Part II provides for the mode and manner of hoisting /use of National Flag by members of the public, private organizations, educational institutions etc. Part III of the Code relates to hoisting/display of the National Flag by the Central and State Governments and their organizations and agencies. Part II of the code, itself lays down that shall be no restriction on the display of the National Flag by members of general public, private organizations, educational institutions etc. except to the extent provided in the 1950 Act and 1971 Act and any other law enacted on the subject.
- The court then discussed the main issue, whether flying of the National Flag is a fundamental right. Part III of the Constitution of India provides for fundamental rights. Article 19 of the Constitution of India guarantees six rights of freedom to the citizens of India. One of such freedom is the freedom of speech and expression. Such a fundamental right is, however, not absolute. It is subject to certain reasonable restrictions like the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
- The Constitution is a living document and thus its ongoing interpretation is permissible. While interpreting the constitution the courts must keep in mind the doctrine of flexibility.
- In People’s Union for Civil Liberties (PUCL) and Another etc. vs. Union of India and Another [(2003) 4 SCC 399 at page 403], this Court held that the attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. The Constitution is required to be kept young, energetic and alive.
- The Fundamental Freedoms provided by the Indian Constitution in Article 19 are not absolute freedoms and are subject to reasonable restrictions which are specified by the Article 19 itself. Thus, no restriction can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19(2).
- This court with regard to the second issue concluded that in India the right to fly national flag comes under the purview of freedom of speech and expression as contained under Article 19(1)(a) of the Constitution of India. This right is a qualified right and is subject to the regulatory measure contained in clause (2) of the said Article. The right is not unfettered, unsubscribed, unrestricted and unchanneled one. As long as the expression is confined to nationalism, patriotism and love for motherland, the use of the National Flag by way of expression of those sentiments would be a fundamental right. It cannot be used for commercial purpose or otherwise. The extreme proposition of law taken in theAmerican decisions that burning of the flag is an expression of anger cannotbe accepted in India as it would amount to disrespect of the National Flag.
- The right to fly the national flag with respect and dignity would be governed by the provisions contained in The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 in this regard. It was also said that it is the duty of the courts to protect the honour of the National Flag.
- Coming to the third issue, the court said that every right is coupled with a duty. Duties and regulations are inherent in Part III of the Constitution of India. Thus, the rights contained in Part III are subject not only to the restrictions contained in Part III itself but also to the restrictions that can be read from Chapter IVA. The court relied on the recommendations of the Justice Verma Committee which was given the task of reviewing the working of the constitution. The Committee said that “Duties are observed by individuals as a result of dictates of the social system and the environment in which one lives, under the influence of role models, or on account of punitive provisions of law. It may be necessary to enact suitable legislation wherever necessary to require obedience of obligations by the citizens. The element of compulsion in legal sanction when combined with the natural urge for obedience of the norms to attract social approbation would make the citizens willing participants in the exercise.”
Law Laid Down By the Court:
The right to fly national flag is an expression of pride for the nation and thus comes under the fundamental right guaranteed under Article 19(1)(a) of the Constitution of India. But the same is not an absolute right and is subject to the reasonable restrictions under clause (2) of Article 19.
Decision Held By Court:
- Right to fly the National Flag freely with respect and dignity is a Fundamental Right of a citizen within the meaning of Article 19(1)(a) of the Constitution of India as it is an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation.
- However, the fundamental right to fly the National flag is not an absolute right and the same is subject to the reasonable restrictions contained under clause (2) of Article 19 of the constitution of India.
- The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of National Flag.
- The Flag Code not being a law within the meaning of Article 13(3)(a) would not restrictively regulate the right of flying the National Flag. However, the Flag Code to the extent it provides for preserving respect and dignity of the national flag shall be followed.
- For maintain a balance between the fundamental/legal rights of a citizen vis-à-vis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India should be taken into consideration.
- For the reasons above-mentioned, the present appeal is thus dismissed.