1. THE THEN HONORABLE CHIEF JUSTICE OF INDIA V.N. KHARE
2. HONORABLE JUSTICE BRIJESH KUMAR
3. HONARABLE JUSTICE S.B. SINHA
Counsels:
For Appellant/Petitioner/: Raju Ramachandran, Additional Solicitor General,
P.P. Malhotra, Sr. Adv., Hemant Sharma, Sushma Suri,
A.D.N. Rao, Brajesh Kumar and Ashok Kumar Pandey, Advs
For Respondents/Defendant: Abhishek Manu Singhvi, Sr. Adv., Gauri Rasgotra,
Amit Bhandari and Suman Jyoti Khaitan, Advs.
FACTS OF THE CASE
Mr. Naveen Jindal, the respondent herein, was a Joint Managing Director of a public limited company incorporated under the Companies Act. He being in charge of the factory of the said company situated at Raigarh in Madhya Pradesh was flying National Flag at the office premises of his factory. He was not allowed to do so and was stopped from doing by the government officials on the ground that the same is impermissible under the Flag Code of India.
PROCEDURAL HISTORY OF THE PETITION
With the facts mentioned aforesaid the case arose when Mr. Naveen Jindal questioning the said action of the government officials filed a writ petition before the Delhi High Court inter alia, on the ground that no law could prohibit flying of National Flag by Indian citizens. Flying of National Flag with respect and dignity being a fundamental right, the Flag Code which contains only executive instructions on the government of India and, thus, being not a law, cannot be considered to have imposed reasonable restrictions in respect thereof within the meaning of Clause (2) of Article 19 of the Constitution of India.
Before the High Court the appellant herein the Union of India raised the following contentions:
1. That the Central government is authorized to impose restrictions on the use of
National Flag at any public place or building and can regulate the same by the authority vested in it under Section 3 of the Emblems and Names (Prevention of Improper Use) Act. 1950. 2. That the restriction imposed by the Act and orders issued by the government are constitutionally valid being reasonable restrictions on the freedom of speech and expression under Article 19(2) of the Constitution. 3. That the question of permitting free use of National Flag or to restrict its use is a matter of policy option available to the Parliament and to the government. Since it is a policy option constitutionally permissible, the courts ought not to interfere with the same.
The High Court after hearing the matter held the decision in the favor of the Mr. Naveen Jindal stating the following: 1. The question as to whether the provision of the Emblems and Names (Prevention of Improper Use) Act, 1950 has been violated or not is a matter which would fall for determination of the court of law and not by the executive. 2. The restrictions imposed by the Flag Code on flying the National Flag being not law within the meaning of Clause (2) of Article 19 of the Constitution of India, the same cannot be construed to be a penal provision. 3. However, if contravention of any of those instructions and guidelines had been issued under the 1950 Act or under the Prevention of Insults to National Honour Act, 1971, the same would constitute a penal offence 4. Referring to the debates held in the constituent assembly as also a passage from the book titled 'Our National Flag' by K.V. Singh, the High Court observed that the citizens were required to be educated by issue of Flag Code and the National Flag must be flown in a respectful manner and so long as a citizen of India does so, no restriction can be imposed on the basis of instructions contained in the Flag Code.
This decision by High court was taken with the reference of various books, constitutional debates where an ad hoc committee was constituted headed by Dr. Rajendra Prasad who formulated the flag of independent India, even the significance of the national flag was aptly portrayed by the Pandit Govind Malaviya was addressed in the court, further how the flying of national flag was understood by the other countries? And how many countries allow the free use of the national flag by the citizens was thoroughly discussed in the court.
Thereafter the Union of India filed an appeal against this decision of the High Court to the Supreme Court with an important question that arises for consideration that is mentioned below.
ISSUE BEFORE THE HON’BLE SUPEME COURT
i. Whether the right to fly the National Flag by Indian citizen is a fundamental right within the meaning of Article 19(1) (a) of the Constitution of India. OBSERVATION OF THE HON’BLE SUPREME COURT
The court had two main schools of thoughts governing the free use of the flag.
On one hand it is contended that the policy of India has so far been to restrict the use of the National Flag with a view of ensuring that it is not dishonored in any manner. The instructions contained in the Flag Code are intended to ensure that proper respect is shown to the National Flag and that the Flag is not used indiscriminately. Moreover, a more liberal use of the National Flag would require greater civic awareness on the part of the citizens. A sudden swing to a liberal approach in the matter may create problems, particularly in the matter of ensuring that the correct usages regarding the National Flag are observed by the citizens at large. Unrestricted use of the National Flag may result in commercial exploitation of the Flag. It may be difficult to detect all such instances and take necessary action. Unrestricted use of the Flag may not attract the same level of respect and reverence from the citizens as at present. The unrestricted use of the National Flag may result in its indiscriminate use in processions, meetings, etc. Instances of insults to the National Flag as a matter of protest may also occur.
Flag Code concededly contains the executive instructions of the Central Government. It is stated that the Ministry of Home Affairs, which is competent to issue the instructions contained in the Flag Code and all matters relating thereto are one of the items of business allocated to the said Ministry by the President under the Government of India (Allocation of Business) Rules, 1961 framed in terms of Article 77 of the Constitution of India. The question, however, is as to whether the said executive instruction is "law" within the meaning of Article 13 of the Constitution of India. Article 13(3)(a) of the Constitution of India reads
"Law" includes any Ordinance, order bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law."
A bare perusal of the said provision would clearly go to show that executive instructions would not fall within the aforementioned category. Such executive instructions may have the force of law for some other purposes; as for example those instructions which are issued as a supplement to the legislative power in terms of clause (1) of Article 77 of the Constitution of India. The necessity as regard determination of the said question has arisen as the Parliament has not chosen to enact a statute which would confer at least a statutory right upon a citizen of India to fly a National Flag. An executive instruction issued by the appellant herein can any time be replaced by another set of executive instructions and thus deprive Indian citizens from flying National Flag. Furthermore, such a question will also arise in the event if it be held that right to fly the National Flag is a fundamental or a natural right within the meaning of Article 19 of the Constitution of India; as for the purpose of regulating the exercise of right of freedom guaranteed under Article 19(1)(a) to (e) and (g) a law must be made.
The Court has also interpreted the provisions of the Constitution of India either in the light of the Directive Principles of the State Policy as contained in Part IV of the Constitution of India or fundamental duties as adumbrated in Part IVA thereof or both. Applying the said test and keeping in view the fact that the right to fly the National Flag is not an absolute right but a qualified right, such right can be read with having regard to Article 51- A of the Constitution of India.
In People's Union for Civil Liberties (PUCL) and Anr. etc. vs. Union of India and Anr1 the Court held
"...It is established that fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. 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".
So far as right of speech and expression is concerned, vis-'-vis censor and other regulations thereof, the Court in Kameshwar Prasad vs. State of Bihar2 observed
"Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech."
In Indian Express Newspapers vs. Union of India & Ors.3 the law is stated in the following terms:
1 [2003] 2 SCR 1136 2 (1962) ILLJ 294 SC 3 1986 159 ITR 856 (SC) i. "Freedom of expression, as learned writers have observed, has four broad social purposes to serve it helps an individual to attain self-fulfillment, ii. it is assists in the discovery of truth, iii. it strengthens the capacity of an individual in participating in decision-making and iv. it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration."
The courts jealously protects the honour of the National Flag as would be noticed from a decision of a Division Bench of the Andhra Pradesh Court, Sinha, J. was a party, in A. Satya Phaneendra vs. S.H.O. Kodad (PS) Nalgonda and Others4, wherein considering a letter enclosing therewith a tri-coloured cloth resembling the National Flag which was sold as handkerchief. The court's decision can be thus stated as:
The aforementioned provisions, having regard to the purpose and object thereof, must be given strict construction. They also must be construed in the context of Article 51- A of the Constitution of India. The provisions of the aforementioned Acts and the Flag Code of India clearly state the reasons as to why the same had to be enacted by the Parliament inasmuch as it is expected of every citizen of India to pay respect to the National Flag, National Anthem and the Constitution of India they deserve and any case involving deliberate disrespect thereto must be seriously dealt with..." Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution of India for the purpose of clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of 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, the same deserves to be followed. For the purpose of interpretation of the constitutional scheme and for the purpose of maintaining a balance between the fundamental/legal rights of a citizen vis- -vis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India
4 2001(2) ALD 264 can be taken recourse to. For the reasons aforementioned, we do not find any merit in this appeal which is accordingly dismissed. But in the facts and circumstances of this case, there shall be no order as to costs.
DECISION ON ISSUE FRAMED
The Supreme Court in a three Judge Bench decision referred to various cases and the rules in other jurisdictions regarding use of National Flag by individuals and dismissed the appeal against the judgment of the High Court and held:
i) The right to fly 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 being an expression and manifestation of his allegiance and feelings and sentiments and pride for the Nation. ii) The fundamental right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under clause 2 of Article 19 of the Constitution. iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of the National Flag. iv) Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution for the purpose of clause (2) of Article 19, it would not restrictively regulate the free exercise of 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, the same deserves to be followed. v) For the purpose of interpretation of the constitutional scheme and for the purpose of maintaining a balance between the fundamental/legal rights of a citizen vis-à- vis, the regulatory measures/restrictions, both Parts IV and IV-A of the Constitution can be taken recourse to.
DECRETAL/ OPERATIVE PART:
The fundamental right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under clause 2 of Article 19 of the Constitution. The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of the National Flag.
Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution for the purpose of clause (2) of Article 19, it would not restrictively regulate the free exercise of 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, the same deserves to be followed.
JUDGEMENT REVIEW
The Court began by commenting on the importance of the national flag of India, noting that it was not only a mere symbol of freedom but also represented and fostered national spirit. The Court noted that several countries, including the United Kingdom, Sri Lanka, Pakistan and Japan, had laid down rules regulating the use and/or display of their national flags. The Court noted that the policy in India had been to restrict the use of its national flag with a view to ensuring that it was not dishonored and that it was shown proper respect. The Court noted that a more liberal approach to the flying of the national flag could result in disrespect, exploitation or indiscriminate use of the flag. However, the Court also noted that only allowing designated individuals and bodies to fly the flag could result in the feeling of dissatisfaction among certain citizens. Furthermore, with the advancement of communications technology, it was becoming very difficult to restrict the public display of the national flag. The Court observed that since all Indians fought for freedom, it could never be the intention that they would be denied the use of the national flag. Accordingly, although not expressly provided anywhere, the Court found that citizens must be given the right to use the national flag subject to limitations preventing its destruction or mutilation.
Before proceeding further, the Court considered the question of whether the Flag Code of India constituted “law” within the meaning of Article 13 of the Constitution, which provided the definition of “law” in the context of fundamental rights. The Court found that the Flag Code of India was merely executive instructions and could not be considered “law”. Consequently, the Flag Code of India could not be used for the basis of a statutory right to fly the national flag in India.
The Court then looked at the core question of whether flying the national flag was a fundamental right under the Constitution. Taking into account the importance of the national flag, the Constituent Assembly Debates on the issue, and rules existing in other countries, the Court found that flying the national flag was a symbol of expression that came within the right to freedom of expression under Article 19(1)(a) of the Constitution.
In reaching this decision, the Court took account of the fact that the Indian Constitution, as well as other constitutions around the world, was a living organ subject to ongoing interpretation. In this context, the Court observed that Article 19 of the Constitution had its meaning extended before; for instance, the Court had recognized that Article 19 protected non-verbal speech (Kameshwar Prasad v. State of Bihar)5, commercial speech (Tata Press Ltd. v. MTNL)6, and audio-visual and electronic communication (Life Insurance Corporation of India v. Professor Manubhai D. Shah)7. In this spirit, the Court held that flying the national flag was “an expression and manifestation of a citizen’s allegiance and feelings and sentiments of pride for the nation” protected by Article 19 of the Constitution.
However, the Court noted that the rights protected by Article 19 of the Constitution were not absolute. With this in mind, the Court reasoned that “so 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.” As the Flag Code of India was not a statute, it could not legitimately regulate the right to freedom of expression under Article 19(2) of the Constitution. Nonetheless, the Emblems and Names (Prevention of Improper Use), Act 1950 and the Prevention of Insults to National Honour Act, 1971 could regulate the flying of the national flag, as long as their regulations were reasonable under Article 19(2) of the Constitution. The Court indicated that it would jealously protect the honor of the national flag, and that the burning of the flag would not be accepted for it would amount to disrespect.
For these reasons, the Court found no merit in the appeal filed by the Union of India and accordingly dismissed it.
So, shortly the honorable supreme court of India has reinforced this judgement with plethora of authorities which underscores that the judgement is exhaustive in nature and has dealt with the paramount question which every Indian citizen deeply holds within themselves. The judgement is not only confined with the question as to the right to fly the National Flag
5 AIR 1962 SC 1166 6 (1995) 5 SCC 139 7 (1992) 3 SCC 637 but also imperatively discuss the scope of the fundamental duties upon a citizen to ensure that the National Flag is duly fly with utmost honor and dignity.
Also with this judgement it is evident that the Court has always placed a broad interpretation on the value and content of Article 19(1)(a), making it subjective only to the restrictions permissible under Article 19(2) further it highlights that the right to fly the Indian National Flag is not an absolute right rather a qualified one, the rationale being that reasonable restrictions can be imposed on it under Article 19 clause 2 inorder to ensure that the Flag is honoured and to be protected from mutilation, burning etc.
Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must, however, be exercised with care which must be taken not to trench on the rights of other citizens or to jeopardise public interest. Flag in one's hearts is what should be given more importance to, and that cannot be judged by the absence or presence of the flag on his body. It is a way of expression, which cannot and should not be curbed by anyone. Hence this judgement has provided the inherent right to a man kind and for the one living in a democratic and a liberalized country.
Procedure G.R. No. 124711 November 3, 1998 MARICALUM MINING CORP., Petitioner, vs. National Labor Relations Commission (NLRC), Sipalay Mine Free Labor Union and Cecilio T. Saludar, Respondents
Procedure G.R. No. 124711 November 3, 1998 MARICALUM MINING CORP., Petitioner, vs. National Labor Relations Commission (NLRC), Sipalay Mine Free Labor Union and Cecilio T. Saludar, Respondents
