Union of India Vs. Naveen Jindal & Anr  Insc 43 (23 January 2004)
Brijesh Kumar & S.B. Sinha
SPECIAL LEAVE PETITON (C) NO.15849 OF 1994 V.N. KHARE,C.J.I.
this appeal a short but an important question that arises for consideration is
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.
Jindal, the respondent herein, is 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 by the
Government officials on the ground that the same is impermissible under the
Flag Code of India.
the said action, the respondent filed a writ petition before the 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 of
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.
the High Court, the Appellant-Union of India raised the following contentions:
That the Central Government is authorised 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;
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.
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 question as to whether the provisions of the Emblems and Names (Prevention
of Improper Use) Act, 1950 (hereinafter referred to as 'the 1950 Act', for the
sake of brevity) have been violated or not is a matter which would fall for
determination of the court of law and not by the executive;
The restrictions imposed by the Flag Code on flying the National Flag being not
law within the meaning clause (2) of Article 19 of the Constitution of India,
the same cannot be construed to be a penal provision;
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 (hereinafter referred to as 'the 1971 Act'), the same would constitute a
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.
we proceed further it may be remembered that from time immemorial, people have
laid down their lives with a view to salute their own Flag. What is so
compelling in the piece of cloth called the National Flag, that people make
even the supreme sacrifice for its sake? National Flag indisputably stands for
the whole nation, its ideals, aspirations, its hopes and achievements.
National Flag" as pointed by Lt. Cdr. K.V. Singh in his book 'Our National
Flag' is the most solemn symbol of a country. Be it a Head of the State, King
or peasant, salutes it. A piece of cloth called the National Flag stands for
the whole nation, its honour and glory. When it goes up the flag mast,
"the heart of a true citizen is filled with pride." In his foreword
to this very book, Mr. R. Venkataraman, former President of India, referred to
the struggle for independence and said as under :
flag, therefore, is both a benediction and beckoning. It contains the blessings
of all those great souls who brought us to freedom. But it also beckons us to
fulfill their vision of a just and united India. As we confront crucial challenges to our security, our unity and
integrity, we cannot but heed to the call of this flag to rededicate ourselves
to the establishment of that peaceful and just order wherein all Indians
irrespective of creed, caste or sex will fulfill themselves." When the
draft of Indian Constitution was being debated, the Constituent Assembly
realized the importance of the National Flag. An ad hoc committee therefor was
constituted headed by Dr. Rajendra Prasad to design the Flag for free India. Other members of the Committee
were Abul Kalam Azad, K.M. Panikar, Sarojini Naidu, C. Rajagopalachari, K.M. Munshi
and Dr. B.R. Ambedkar. The Flag Committee having been constituted held several
meetings and studied the question in depth. It arrived at the following decision
The flag of the Indian National Congress should be adopted as the National Flag
of India with suitable modifications, to make it acceptable to all parties and
communities in India.
The flag should be tricoloured, with three bands horizontally arranged.
The colours should be in the following order: saffron on top, white in the
middle and dark green at the bottom.
The emblem of the flag should be an exact reproduction of the wheel on the
capital of Asoka's Sarnath Pillar, superimposed in the middle of the central
The colour of the emblem should be dark blue." A motion was moved by Pandit
Jawahar Lal Nehru in the Constituent Assembly of India on 22nd July 1947 for the adoption of the National
responses to this motion are extremely significant and serve as apt reflections
of the importance of the Indian Flag to the Indian people as a whole. The Flag
played an extremely vital role in India's struggle for freedom and its adoption was one of the indications of
the culmination of that struggle. However, in the light of the present society,
it is something that is much more than a mere symbol of freedom.
said by Pandit Jawahar Lal Nehru, the flag is, "a flag of freedom not for ourselves,
but a symbol of freedom to all people who may seek it." (See Constituent
Assembly Debates, 22nd July 1947, p. 766) It was not to be the flag of the rich
or wealthy, but it is to be the Flag of the depressed, oppressed and submerged
classes all over the country. (See the views of Shri V.I. Muniswami Pillai, in
Constituent Assembly Debates, 22nd July 1947, p.771). This flag was to be the
flag of the Nation, not the flag of any particular community, but the Flag of
all Indians. As declared by Shri Frank Anthony, "while this is a symbol of
our past, it inspires us for the future.
flag flies today as the flag of the nation, and it should be the duty and
privilege of every Indian not only to cherish and live under it, but if
necessary, to die for it." (See Constituent Assembly Debates, 22nd July
1947, p. 780) The significance of the National Flag was aptly portrayed by Pandit
Govind Malaviya who said, "The importance of a National Flag does not
depend on its colour, its bands or its other parts. The flag as a whole, is
important and other things- the colours etc, that it contains- are immaterial.
flag may be of a piece of white cloth or of any other insignificant material
but when it is accepted as a National Flag, it becomes the emblem of national
self-respect. It becomes an expression of the sense of freedom of a nation."
The resolution which was adopted as under :
that the National Flag of India shall be a horizontal tricolour of deep Saffron
(Kesari), white and dark green in equal proportion. In the center of the white
band, there shall be a wheel of navy blue to represent the Chakra. The design
of the wheel shall be that of the Wheel (Chakra) which appears on the abacus of
the Sarnath Lion Capital of Asoka." National Flags are intended to project
the identity of the country they represent and foster national spirit. Their
distinctive designs and colours embody each nation's particular character and
proclaim the country's separate existence. Thus it is veritably common to all
nations that a national flag has a great amount of significance. In order that
the respect and dignity of the flag be fostered and maintained, several
countries have laid down rules relating to the use, display, etc. of the flag,
along with rules to provide against the burning, mutilation and destruction of
the flag. At this stage we would like to deal with the question as to how
flying of national flag is understood by other countries. The question at hand
relates to how many countries allow the free use of the national flag by the
citizens. In stark contrast to the role the flag has played in the freedom
struggles, in several countries, the usage of the flag has become a virtual
sole prerogative of the government.
ON THE USE OF FLAG IN DIFFERENT COUNTRIES:
of the country Whether free use of National Flag is allowed to an individual 1.
Australia Yes 2.
Brazil Yes 3.
Canada Yes 4.
Yes, even on certain occasions and places 5.
Egypt No 6.
Germany No 7.
Indonesia No 8.
Italy No 9.
Malaysia Yes 11.
Mexico No 12.
Miramar No 13.
Zealand Yes 14.
Pakistan No 15.
Lanka No 16.
Sweden No 17.
& Tobago No 18.
Kingdom No Countries like Canada and Brazil allow free use of the flag by
individuals, with the only rider being that the flag is treated with dignity
and respect and flown and displayed properly. In the US Flag Code, free use by
citizens is not specifically defined. The US Flag Code advocates the flying of
the flag with dignity and prohibits mutilation or defilement in public and its
use as costumes, athletic uniforms, cushions, handkerchiefs, etc. While stating
that the flag should be flown on all days, it specifies certain days on which
the flag should be flown specially. In the United Kingdom, the flying of the flag is restricted to certain dates and
on specified buildings. Japan has not defined the free use of the
Flag by individuals, but has some provisions, which may allow for their usage.
For example, it is stated, "Now some of you must be inviting foreign
guests to your factory or company in connection with your work. You must be
having reception, meetings, dining together. In such cases, as a symbol of
welcome, if you want to hoist the national flag along with the flag of the
other person's country, the...specifications about size, etc. are to be followed."(See
National Flag of Japan [Basic Rules for Hoisting]) Among
India's neighbours, Pakistan allows free display of the National Flag on
specified days only as may be notified by the government. Similarly, Sri Lanka
also permits display of the National Flag on days of national importance only.
(See the Report of the National Flag Committee, April 2001, pp. 14-15)
Elsewhere among the Commonwealth nations, in Australia the rules for flying the
national flag only relate to flying the flag with dignity. In fact, it is
mentioned that the government hopes that all Australians will honour and fly it
with the pride befitting a national symbol. Similarly, it will be noticed that
even in New Zealand, there are no special days prescribed on which only
individuals can fly the flag. In fact it is specifically stated that the New
Zealand Flag may be flown on any day of the year. The rules are meant to serve
as guides to simplify flag flying and lay down the correct way to display the
national flag. In fact in New Zealand the flag can be used for advertising and
commercial use also, provided that a faithful representation should always be
achieved with the flag being reproduced in its true colours. In China, the Flag
can be displayed even on New Year's Day, Spring Festival and in public places
such as squares and parks. Further, even in Malaysia, there is no restriction
on the flying of the flag. The Flag can be put on cars and even on the inside
of cars and flags are almost all over the place. The Malaysians use stickers with
the National Flag and inscriptions 'proud to be Malaysian.' The proceedings of
this Court show that the appellant herein with a view to resolve the
controversy took several adjournments in the matter.
a committee was constituted by the appellant on or about 18.10.2000 submitted
its report in April 2001 upon obtaining the views of the State Governments and
the Union Territory Administrations as regard the questions :
Whether there is need to liberalize the use of the National Flag. If so, to
Whether the State Government foresee any problems in liberalizing the use of
the National Flag.
the use of the National Flag is to be liberalised for general public, what type
of reasonable restrictions may be imposed to ensure that the dignity of the
flag is maintained.
Whether the provisions of the Flag Code - India should have statutory back-up."
Committee constituted by the Central Government took into consideration the
history and genesis of the Flag and inter alia noticed :
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 honour
of their motherland." The recommendations made by the said Committee was
placed before the Cabinet whereafter the Flag Code of India 2002 was issued
which came into force with effect from 26.1.2002.
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/display/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. From Clause 2.1 of Section I appearing in
Part II of the National Flag, it is now clear that there 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.
Having regard to the aforementioned statutes, as regards flying of the National
Flag, regulations which are 13 in number have been laid down in the Flag Code,
one of them being :
the Flag shall not be used for commercial purposes in violation of the emblem
and Names (Prevention of Improper Use) Act, 1950;" Section I of Part III
provides for defence installations/Heads of Missions/Posts whereas Section II
provides for official display. Section II of Part II provides for as to how the
National Flag may be hoisted in educational institutions. Section III of Part
III lays down the manner in which correct display of the National Flag should
be made and in contrast thereto Section IV provides for incorrect display.
Section V provides as to how misuse of the National Flag should be prevented.
Section VI provides for salute of the Flag. Section VII provides that display
with flags of other Nations and of United Nations.
interpretation of the Constitution of India is primarily must be based on the
materials available in India, relevant rules of the other
countries have been enumerated hereinbefore for our guidance.
therefore be stated that some countries like Brazil, Canada allow for the unrestricted use of
the Flag by individuals. On the other side of the spectrum, countries like the UK hold their flag so sacrosanct that individuals are
not permitted to use and display the flag. Other countries all try to strike a
balance between the two extremes, based on the cherished values of their
country, the history behind the evolution of the flag in their country, etc.
Thus, in order to discern whether an individual has a right to display the flag
in India, one will have to discern what are
the advantages and disadvantages of free use and balance that with the vital
role played by the flag in India's
are 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.
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
on the other hand, there is another set of people who ardently believe that
there exists strong reasons to liberalise the use of National Flag for a number
of reasons, some of them being: - ? Due to the various restrictions imposed on
the use and display of the National Flag, an impression has developed among
people as if the national Flag is meant for Government use only and the people
at large are permitted unrestricted display of National Flag only on certain
limited occasions. This has probably created a feeling of dissatisfaction among
certain sections of people of India.
the electronic media and satellite communication becoming popular, it is very
difficult to ensure that public display of the National Flag is avoided. For
instance, in various international sports or cultural events, people identify
themselves with their country by displacing the National Flag.
an expression of pride. It is an expression of genuine enthusiasm. If the
restrictions imposed on the use of the National Flag are implemented
scrupulously, it would amount to discouraging the Indian citizens or Indian
nationals from identifying themselves with the Flag of the country.
restrictions imposed on the use of the National Flag should be commensurate
with the international practices being adopted by various democratic countries
and the Government should not impose any restriction, which distances people
from the National Flag.
there exist two very strong views of thought on whether there should be free and
unrestricted use of the flag allowed to citizens. The stand taken by other
countries definitely has a bearing on the course India has taken so far and the
course to be adopted in the future. It can be seen from the history, reflected
very aptly from the discussions in the Constituent Assembly that the flag is
definitely one of the most revered objects in our society. It must certainly be
treated with the utmost respect and dignity. This might not be possible without
imposing any restrictions on its use. But one can see from the global scenario,
that the major trend is to protect the flag against mutilation, destruction,
etc. and not to prevent individuals from having any access to the flag, making
its use a virtual exclusive privilege of the government. Since all Indians
fought for freedom, it can never be the intention to deny them use of their
National Flag - a symbol of their freedom in entirety. Thus, one can conclude
that the basic intention is to provide against the destruction, mutilation,
etc. of the Flag and to provide certain basic level rules for when and how it
should be compulsorily used. Though not expressly stated, it must therefore
give a right of usage to the citizens, other than on the specific occasions
the question arises, which view is to be accepted. 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.
are necessary adjunct of sovereignty being symbols and actions associated
therewith. Can an Indian citizen having regard to the law prevailing in other
countries fly an Indian flag therein or whether a foreigner can fly his flag in
India. If the answer to the question is to be rendered in the negative, a
startling result will follow therefrom inasmuch an Indian citizen traveling
abroad will be entitled to fly the National Flag but not in India whereas a
foreigner would be entitled to do so within the territory of India.
beauty of the Indian Constitution is that the entire structure of the country
is based thereupon. It is the very pillar upon which the democracy of India
stands. The unity and integrity of India if to be perceived in diverse
situation, the feeling of loyalty, commitment and patriotism can be judged not
only by giving effect to the constitutionalism but also on their secular symbol
unhidden as noticed hereinbefore. The question of this nature has to be
considered not from the answer as to whether their exists an express provision
on the basis whereof a right to fly the National Flag can be rested or whether
there is anything in the Constitution prohibiting or denying the exercise of
such a right. If flying of a National Flag is considered in absence of any
denial thereof either in the Constitution or in any other statute book, it may
be held to be a part of the fundamental right.
we proceed further, it is necessary to deal with the question, whether Flag
Code is "law"? 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 thus :
(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." A bare perusal of the said provision would clearly go to
show that executive instructions would not fall within the aforementioned
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.
Singh vs. State of U.P. [AIR 1963 SC 1295], this Court held :
learned counsel for the respondent started by attempting such a justification
by invoking section 12 of the Indian Police Act he gave this up and conceded
that the regulations contained in Chapter XX had no such statutory basis but
were merely executive or departmental instructions framed for the guidance of the
would not therefore be "a Law" which the state is entitled to make
under the relevant clauses (2) to (6) of Article 19 in order to regulate or
curtail fundamental rights guaranteed by the several sub-clauses of Article
19(1), nor would the same be a "a procedure established by law"
within Article 21. The position therefore is that if the action of the police
which is the arm of the executive of the state is found to infringe any of the
freedom guaranteed to the petitioner the petitioner would be entitled to the
relief of mandamus which he seeks, to restrain the state from taking action
under the regulations." To the same effect are the decisions of this Court
in State of Madhya Pradesh and Another vs. Thakur Bharat Singh [AIR 1967 SC
1170], Bijoe, Emmanuel and Others vs. State of Kerala and Others [(1986) 3 SCC
S.C. Advocates-on-Record Assn. vs. Union of India [(1993) 4 SCC 441], it was held
is the "will" of the people whereas the statutory laws are the creation
of the legislators who are the elected representatives of the people.
the will of the legislature-declared in the statutes-stands in opposition to
that of 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, stating :
said circular letter has not been issued by the State in exercise of its power
under Article 162 of the Constitution of India. It is not stated therein that
the decision has been taken by the Cabinet or any authority authorized in this
behalf in terms of Article 166(3) of the Constitution of India. It is trite
that a circular letter being an administrative instruction is not a law within
the meaning of Article 13 of the Constitution of India. [See Dwarka Nath Tewari
v. State of Bihar - AIR 1959 SC 249].
come to the core question, whether flying of the National Flag is a fundamental
right? Part III of the Constitution of India provides for fundamental rights.
reason of Article 19 of the Constitution of India six rights of freedom have
been guranteed to the citizens of India. Clause (a) of the said right speaks of
freedom of speech and expression. Such a fundamental right is, however, not
absolute. It is subject to the regulatory provisions contained in clause (2)
which reads thus :
in sub-clause (a) of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said
sub-clause in the interests of 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 rights specified in Article 19 operate
against the State actions.
rights granted to a citizen of India under Article 19 of the Constitution of
India, it is trite, is not to be considered in isolation as Part III
constitutes an amalgam of rights and, thus, a law falling under Articles 21 and
22 of the Constitution of India has yet to satisfy the requirements of other
Articles in Part III of the Constitution, such as Articles 14 and 19 of the
Constitution of India.
view to find out an answer to the aforementioned question, it was necessary for
us also to take into account : importance of the National Flag;
Constituent Assembly Debates; and
Rules existing in other countries, which have already been adverted to.
would appear from the discussions made herein before, flying of National Flag
being symbol of expression would come within the purview of Article 19(1) (a)
of the Constitution.
Victor Chandler International vs. Customs and Excise Commissioners and another
[2000) 2 All ER 315 at p. 322], it was stated :
There are, of course, some gaps in legislation that cannot be filled by judge
made law. But it is now a well known rule of statutory construction that an
'ongoing' statutory provision should be treated as 'always speaking'. The
principle is set out in Bennion Statutory Interpretation (3rd edn, 1997),
It is presumed that Parliament intends the court to apply to an ongoing Act a
construction that continuously updates its wording to allow for changes since
the Act was initially framed (an updating construction). While it remains law,
it is to be treated as always speaking....
fixed-time Act is intended to be applied in the same way whatever changes might
occur after its passing.
construction is not therefore applied to it.
principles received the endorsement of the Court of Appeal in R. vs. Westminister
City Council, ex p A (1997) 9 Admin LR 504 at 509, where Lord Woolf MR
described the National Assistance Act 1948 as - 'a prime example of an Act
which is "always speaking" and so should be construed" on a
construction, that continuously updates its wording to allow for changes since
the Act was initially framed".
being a living organ, its ongoing interpretation is permissible. The supremacy
of the Constitution is essential to bring social changes in the national polity
evolved with the passage of time.
of the Constitution is a difficult task. While doing so, the constitutional
courts are not only required to take into consideration their own experience
over the time, the international treatise and covenants but also keeping the
doctrine of flexibility in mind. This Court times without number has extended
the scope and extent of the provisions of the fundamental rights, having regard
to several factors including the intent and purport of the constitution makers
as reflected in Parts IV and IVA of the Constitution of India.
developed countries, like Australia, freedom of expression did not find place
in the Australian Constitution. In fact, there is no list of personal rights of
freedom which may be enforced in the courts, listed in the Australian
Constitution, save and except certain personal rights such as the right to
trial by jury (Section 80) and the right to freedom of religion (Section 116).
Despite the same the High Court of Australia beginning from 1992 indicated that
the citizens enjoy implied rights to free speech and communication on matters
concerning politics and government, as for example, permitting political
advertising during election campaigns terms as 'implied freedom of political
note some case law from Australia, in this connection :
Levy v State of Victoria and Lange v Australian Broadcasting Corporation, Anne Twomey,
Sydney Law Review, Vol 1 No 1, March 1997, it was stated :
constitutional implication of freedom of political communication may have only
recently been recognised in Australia, but it has rapidly developed through
three generations of cases. It was initially recognised in 1992 on the grounds
that it was necessary for the efficacious operation of the system of
representative government which is mandated by the text and structure of the
Commonwealth Constitution. In 1994, the application of the implication was
expanded in Theophanous v Herald & Weekly Times Ltd and Stephens v West
Australian Newspapers Ltd to constrain State defamation laws, both statute and
common law. In 1996, however, the High Court has been more restrained in its
interpretation of the extent of the implication and in the development of
further implications which rest upon the constitutional system of
representative government." In The State of Play in the Constitutionally
Implied Freedom of Political Discussion and Bans on Electoral Canvassing in
Australia, George Williams, Parliamentary Library Law and Bills Digest Group
Research Paper 10, 1997, it was observed :
judicial moves to strengthen protection for political discussion in Australia,
there have been countervailing political moves to restrict certain forms of
political speech. This has frequently been driven by inquiries undertaken by
parliamentary committees at both the State and Federal level. ...Does this mean
that Australian Parliaments and the High Court are on a collision course over
free speech in the electoral process? The answer need not be yes." The
decisions of the High Court in Australian Capital Television Pty Ltd v
Commonwealth (the Political Broadcasts case) and Nationwide News Pty Ltd v
Wills (the Nationwide News case) mark a significant new development in
Australian constitutional law, in particular because of the High Court's
recognition of the freedom of communication in relation to political matters.
5 of the 1988 Brazil Constitution guarantees that "the expression of thought
is free, and anonymity is forbidden... the expression of intellectual,
artistic, scientific, and communications activities is free, independently of
censorship or license" and that "the privacy, private life, honor and
image of persons are inviolable, and the right to compensation for property or
moral damages resulting from their violation is ensured." Free speech
rights in the Venezuelan constitution are based on the broad definition of
''freedom of expression'' in Article 19 of the Universal Declaration of Human
Rights, which asserts, not only a right to ''freedom of opinion and
expression'' but also a right ''to seek, receive and impart information and
ideas through any media and regardless of frontiers.'' Section 2(b) of the
Canadian Charter states that "Everyone has the freedom of thought, belief,
opinion and expression, including freedom of the press and other media of
communication." The section potentially could cover a wide range of
action, from commercial expression to political expression; from journalistic
privilege to hate speech to pornography. The jurisprudence of the Supreme Court
of Canada has largely been an attempt to carve out: first, the purpose of s.
2(b) what values does it seek to protect, who should be entitled to its protection;
and second, the scope of s. 2(b), what is 'expression'? Freedom of expression
is a cornerstone of functioning of the democracy. Freedom of expression
promotes certain values, as noted by Professor Emerson in 1963:
"Maintenance of a system of free expression is necessary
assuring individual self-fulfillment,
a means of attaining the truth,
a method of securing participation by the members of the society in social,
including political, decision-making, and
maintaining the balance between stability and change in society."
commitment to free speech was held to be predicated on the belief that a free
society cannot function with coercive legal censorship in the hands of persons
supporting one ideology who are motivated to use the power of the censor to
suppress opposing viewpoints.
Canadian approach to freedom of expression allows for a wide conception of
"expression" within s. 2(b). The Supreme Court of Canada has stated
that a wide and inclusionary approach to the interpretation of the Charter's
free expression guarantee is to be preferred (see Ford v. Quebec 1988 (2) SCR
90, and Irwin Toy v. Quebec (Attorney General) 1989 (1) SCR 927). Thus, in
Irwin Toy, Chief Justice Dickson explained that "'expression' has both a
content and a form, and the two can be inextricably connected. Activity is
expressive if it attempts to convey meaning. That meaning is its content."
Not only is there a freedom of expression, there is also a freedom not to
express. As Justice Beetz said in National Bank of Canada v. R.C.U. 1984 (1)
SCR 269 [p. 377 text], "all freedoms guaranteed by s. 2 of the Charter
necessarily imply reciprocal rights: ... freedom of expression includes the
right to not express." There are of course limits to free speech and free
press guarantees, as the Canadian Supreme Court is quite ready to point out
(see CBC v. A.G.N.B. 1991 (3) SCR 459).
example, even though the press enjoys core constitutional rights of access and
publication, they do not have protection for all operational means and methods
the press may choose to adopt. The press does not, for example, enjoy immunity
if they run a pedestrian down in pursuit of a new story under the guise of
"freedom of the press". Nor is a violent attack on someone (however
dramatic the attack may be) considered to be expression. Understanding freedom
of expression requires not only understanding its place in the Canadian
constitution, but also, understanding it within the context of society and
society's competing values.
Court has also extended the meaning of Articles 14, 19 and 21 of the
Constitution of India. [See; Jagdish Saran and Others vs. Union of India (1980)
2 SCC 768] Decisions are many where this Court read various rights in Article
21 of the Constitution of India.
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.
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
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
right to have a passport was also held to be a part of personal liberty under
Article 21 of the Constitution of India. [See: Maneka Gandhi vs. Union of India
- [1978 ] 1 SCC 248]. Disturbance to ecological balance has been held to be
hazardous to life within the meaning of Article 21 of the Constitution of India
[See M.C. Mehta vs. Kamal Nath (2000) 6 SCC 213].
facets of Article 14 of the Constitution of India have been discussed in a
series of judgments. The expanded notion of the principle of equality as
enunciated by E.P. Royappa vs. State of Tamil Nadu [AIR 1974 SC 555] followed
in Maneka Gandhi vs. Union of India [AIR 1978 SC 597 at para 56], R.D. Shetti
vs. International Airport Authority of India [AIR 1979 SC 1628], Ajay Hasia vs.
Khalid Mujib [AIR 1981 SC 487] and Neelima Misra vs. Harinder Kaur [(1990) 2
as right of speech and expression is concerned, vis-`-vis censor and other
regulations thereof, this Court in Kameshwar Prasad vs. State of Bihar [AIR 1962 SC 1166] observed :
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.
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 L.I.C. vs. Professor Manubhai D. Shah, [(1992) 3 SCC 637], it
was observed :
Speech is God's gift to mankind. Through speech a human being conveys his
thoughts, sentiments and feelings to others. Freedom of speech and expression
is thus a natural right which a human being acquires on birth. It is,
therefore, a basic human right. Everyone has the right to freedom of opinion
and expression; the right includes freedom to hold opinions without
interference and to seek and receive and impart information and ideas through
any media and regardless of frontiers."
constitutional provision is never static, it is ever-evolving and ever-changing
and, therefore, does not admit of a narrow, pedantic or syllogistic approach.
If such an approach had been adopted by the American Courts, the First Amendment
- (1971) - "Congress shall make no law abridging the freedom of speech, or
of the press" - would have been restricted in its application to the
situation then obtaining and would not have catered to the changed situation
arising on account of the transformation of the print media. It was the broad
approach adopted by the Court which enabled them to chart out the contours on
ever- expanding notions of press freedom. In Dennis v. United States (341 US 494 : 95 L Ed 1137 (1951)) Justice Frankfurter observed :
The language of the First Amendment is to be read not as barren words found in
a dictionary but as symbols of historic experience illuminated by the
presuppositions of those who employed them." Adopting this approach in
Joseph Burstyn, Inc. v. Wilson (343 US 495) the Court rejected its earlier determination to the contrary in
Mutual Film Corporation v. Industrial Commission of Ohio (236 US 230) and concluded that expression through motion
pictures is included within the protection of the First Amendment. The Court
thus expanded the reach of the First Amendment by placing a liberal
construction on the language of that provision. It will thus be seen that the
American Supreme Court has always placed a broad interpretation on the
constitutional provision for the obvious reason that the Constitution has to
serve the needs of an ever-changing society.
same trend is discernible from the decisions of the Indian courts also. It must
be appreciated that the Indian Constitution has separately enshrined the
fundamental rights in Part III of the Constitution since they represent the
basic values which the people of India cherished when they gave unto themselves
the Constitution for free India. That was with a view to ensuring that their honour,
dignity and self respect will be protected in free India. They had learnt a bitter lesson
from the behavior of those in authority during the colonial rule. They were,
therefore, not prepared to leave anything to chance. They, therefore,
considered it of importance to protect specific basic human rights by
incorporating a Bill of Rights in the Constitution in the form of fundamental
rights. These fundamental rights were intended to serve generation after
generation. They had to be stated in broad terms leaving scope for expansion by
courts. Such an intention must be ascribed to the Constitution-makers since
they had themselves made provisions in the Constitution to bring about a
socio-economic transformation. That being so, it is reasonable to infer that
the Constitution-makers employed a broad phraseology while drafting the
fundamental rights so that they may be able to cater to the needs of a changing
words "freedom of speech and expression" must, therefore, be broadly
construed to include the freedom to circulate one's views by words of mouth or
in writing or through audio-visual instrumentalities. It, therefore, includes
the right to propagate one's views through the print media or through any other
communication channel e.g. the radio and the television. Every citizen of this
free country, therefore, has the right to air his or her views through the
printing and/or the electronic media subject of course to permissible
restrictions imposed under Article 19(2) of the Constitution.
print media, the radio and the tiny screen play the role of public educations,
so vital to the growth of a healthy democracy. Freedom to air one's views is
the lifeline of any democratic institution and any attempt to stifle, suffocate
or gag this right would sound a death-knell to democracy and would help usher
in autocracy or dictatorship...." From the aforementioned observation, it
is evident that LIC's refusal to publish respondent's rejoinder was unfair and
amounted to denial of his right under Article 19(1)(a) of the Constitution of
Secretary, Ministry of Information and Broadcasting vs. Cricket Association of
Bengal and Others [(1995) 2 SCC 161], it was observed :
freedom of speech and expression includes right to acquire information and to disseminate
it. Freedom of speech and expression is necessary, for self-expression which is
an important means of free conscience and self- fulfilment. It enables people
to contribute to debates on social and moral issues. It is the best way to find
a truest model of anything, since it is only through it that the widest
possible range of ideas can circulate. It is the only vehicle of political
discourse so essential to democracy.
important is the role if plays in facilitating artistic and scholarly endeavours
of all sorts." "45. The burden is on the authority to justify the
restrictions. Public order is not the same thing as public safety and hence no
restrictions can be placed on the right to freedom of speech and expression on
the ground that public safety is endangered. Unlike in the American
Constitution, limitations on fundamental rights are specifically spelt out
under Article 19(2) of our Constitution.
no restrictions can be placed on the right to freedom of speech and expression
on grounds other than those specified under Article 19(2)." Thus, the
right to impart and receive information by air waves and otherwise is a species
of the right of freedom of speech and expression guaranteed by Article 19(1)(a)
of the Constitution.
Indian Express Newspapers vs. Union of India & Ors. [(1985) 1 SCC 641], the
law is stated in the following terms:
of expression, as learned writers have observed, has four broad social purposes
helps an individual to attain self fulfillment,
is assists in the discovery of truth,
strengthens the capacity of an individual in participating in decision-making
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.
of speech and expression should, therefore, receive a generous support from all
those who believe in the participation of people in the administration."
Thus, the burden of import duty imposed on newsprint was held to be a
restriction protected by Article 19(1)(a) of the Constitution of India.
Press Ltd. vs. MTNL and Others [(1995) 5 SCC 139], it was observed :
a democratic economy free flow of commercial information is indispensable.
There cannot be honest and economical marketing by the public at large without
being educated by the information disseminated through advertisements.
economic system in a democracy would be handicapped without there being freedom
of "commercial speech".
commercial speech has been held to be part of freedom of speech and expression
guaranteed under Article 19(1)(a) of the Constitution of India.
Bennett Coleman & Co. vs. Union of India & Ors. [(1972) 2 SCC 788] it
was held :
The faith of a citizen is that political wisdom and virtue will sustain
themselves in the free market of ideas so long as the channels of communication
are left open. The faith in the popular Government rests on the old dictum,
"let the people have the truth and the freedom to discuss it and all will
go well." The liberty of the press remains an "Art of the
Covenant" in every democracy. Steel will yield products of steel." It
was further observed :
Political philosophers and historians have taught us that intellectual advances
made by our civilisation would have been impossible without freedom of speech
and expression. At any rate, political democracy is based on the assumption
that such freedom must be jealously guarded. Voltaire expressed a democrat's
faith when he told an adversary in argument : "I do not agree with a word
you say, but I will defend to the death your right to say it". Champions
of human freedom of thought and expression, throughout the ages, have realised
that intellectual paralysis creeps over a Society which denies, is however
subtle a form, due freedom of thought and expression to its members." In Gajanan
Visheshwar Birjur vs. Union of India [(1994) 5 SCC 550], this court held :
Before parting with this case, we must express our unhappiness with attempts at
thought control in a democratic society like ours. Human history is witness to
the fact that all evolution and all progress is because of power of thought and
that every attempt at thought control is doomed to failure. An idea can never
be killed. Suppression can never be a successful permanent policy. Any surface
serenity it creates is a false one. It will erupt one day. Our Constitution
permits a free trade, if we can use the expression, in ideas and ideologies. It
guarantees freedom of thought and expression - the only limitation being a law
in terms of clause (2) of Article 19 of the Constitution. Thought control is
alien to our constitutional scheme. To the same effect are the observations of
Robert Jackson, J. in American Communications Association v. Douds (339 US 382,
442-43 (1950) : 94 L Ed 925) with reference to the U.S. Constitution :
control is a copyright of totalitarianism, and we have no claim to it. It is
not the function of our Government to keep the citizen from falling into error;
it is the function of the citizen to keep the Government from falling into
error. We could justify any censorship only when the censors are better
shielded against error than the censored." In Hindustan Times and Others
vs. State of U.P. and Another [(2003) 1 SCC 591], this Court noticed as to how
the right of its shareholders to have a free press is a fundamental right
keeping in view the fact that the newspapers serve as a medium of exercise of
freedom of speech. Referring to Sakal Papers (P) Ltd. vs. Union of India [AIR
1962 SC 305], Tata Press Ltd. (supra) and Bennett Coleman (supra), it was held
is neither in doubt nor in dispute that for the purpose of meeting the costs of
the newsprint as also for meeting other financial liabilities which would
include the liability to pay wages, allowances and gratuity etc to the working
journalists as also liability to pay a reasonable profit to the shareholders vis-`-vis
making the newspapers available to the readers at a price at which they can
afford to purchase it, the petitioners have no other option but to collect more
funds by publishing commercial and other advertisements in the newspaper."
This Court, thus, held that no tax can be levied on the newsprint for the
purpose of granting wages, allowances and gratuity etc. to the working
this connection, it is useful to note the first amendment of the Constitution
of the United States of America in respect of Religion and Free Expression :
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government
for a redress of grievances." The law of the United States of America not
only recognize the right to fly National flag but it has gone to the extent of
holding that the flag burning as an expression of free speech and free
expression of its citizens against the establishment but we do not approve
later part of right.
Harold Omand Spence 41 L Ed 2d 842, it was held "He displayed it as a flag
of his country in a way closely analogous to the manner in which flags have
always been used to convey ideas.
his message was direct, likely to be understood, and within the contours of the
First Amendment." In Sidney Street v. State of New York, 22 L Ed 2d 572,
it was held :
are unable to sustain a conviction that may have rested on a form of
expression, however distasteful, which the Constitution tolerates and
protects." In Texas v. Johnson, 105 L Ed 2d 345 at 345 it was held :
whether or not he could appreciate the enormity of the offence he gave, the
fact remains that his acts were speech, in both the technical and the
fundamental meaning of the Constitution. So I agree with the Court that he must
go free." In US v. Shawn D. Eichman, 110 L Ed 2d 287, it was held :
may create national symbols, promote them, and encourage their respectful
treatment. But the Flag Protection Act of 1989 goes well beyond this by
criminally prescribing expressive conduct because of its likely communicative
impact." We may, however, notice that in Board of Educ. V. Barnette, 319
US 624, it has been held :
to differ is not limited to things that do not matter much. That would be a
mere shadow of freedom. The test of its substance is the right to differ as to
things that touch the heart of the existing order.
there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess
by word or act their faith therein. If there are any circumstances which permit
an exception, they do not now occur to us." Here it is necessary to notice
the distinction between the Constitution of India and that of United States of
America and that is that in U.S.A. the first amendment gives an absolute right
to a citizen of religion and free expression, but under Constitution of India
Article 19(1)(a) does not confer such an absolute right of free speech and
expression. It only provides for a qualified right. Such a fundamental right of
a citizen of speech and expression is subject to the regulatory measures
contained in clause (2) thereof. 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.
Code is not a statute; thereby the Fundamental Right under Article 19(1) (a) is
not regulated. But the guidelines as laid down under the Flag Code deserve to
be followed to the extent it provides for preservation of dignity and respect
for the national flag. The right to fly the National Flag is not an absolute
right. The freedom of expression for the purpose of giving a feeling of
nationalism and for that purpose all that is required to be done is that the
duty to respect the flag must be strictly obeyed. The pride of a person
involved in flying the Flag is the pride to be an Indian and that, thus, in all
respects to it must be shown. The state may not tolerate even the slightest
question which arises in this respect is whether the right to fly the National
Flag is to be considered in the context of fundamental duties.
right is coupled with a duty. Part III of the Constitution of India although
confers rights, duties and regulations are inherent thereunder.
reasonable regulations have been found to be contained in the provisions of
Part III of the Constitution of India, apart from clauses 2 to 4 and 6 of
Article 19 of the Constitution of India.
this right is subject to certain restrictions which can be read from Chapter IV
A. Article 51A(c) reads as under:
to uphold and protect the sovereignty, unity and integrity of India." The
question as to whether Article 51-A is not justiciable or enforceable thus
takes a backseat. In Indian Handicraft Emporium and Others vs. Union of India
and Others [JT 2003 (7) SC 446], it was held :
provisions of the statute are also required to be considered keeping in view
Article 48-A and Article 51A(g) of the Constitution of India which are in the
Protection and improvement of environment and safeguarding of forests and wild
life.-- The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country."
Fundamental duties. -- It shall be the duty of every citizen of India -- ...
... ... ... ... ... ...
protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures;" We cannot
shut our eyes to the statements made in Article 48-A of the Constitution of
India which enjoins upon the State to protect and improve the environment and
to safeguard the forests and wild life of the country.
is destructive of environment, forest and wild life, thus, being contrary to
the Directive Principles of the State Policy which is fundamental in the
governance of the country must be given its full effect. Similarly, the
principles of Chapter IVA must also be given its full effect. Clause (g) of
Article 51A requires every citizen to protect and improve the natural
environment including forests, lakes, rivers and wild life and to have
compassion for living creatures. The amendments have to be carried out keeping
in view the aforementioned provisions.
recent amendments made in the Flag Code by the Union of India and the stand
taken by the learned Solicitor General that the Central Government is not
against the flying of the Flag by an individual is itself indicative of the
fact that a liberal construction so far as Article 19(1) (a) is concerned may
be adopted. The extreme proposition of law taken in the American decisions that
burning of the flag is an expression of anger cannot be accepted in India as it
would amount to disrespect of the National Flag.
Court in S. Rangarajan etc. vs. P. Jagjivan Ram and Others [(1989) 2 SCC 574],
laid down the law in the following terms :
are amused yet troubled by the stand taken by the State Government with regard
to the film which has received the National Award. We want to put the anguished
question, what good is the protection of freedom of expression if the State
does not take care to protect it? If the film is unobjectionable and cannot
constitutionally be restricted under Article 19(2), freedom of expression
cannot be suppressed on account of threat of demonstration and processions or
threats of violence. That would tantamount to negation of the rule of law and a
surrender to blackmail and intimidation. It is the duty of the State to protect
the freedom of expression since it is a liberty guaranteed against the State.
The State cannot plead its inability to handle the hostile audience problem. It
is its obligatory duty to prevent it and protect the freedom of
expression." In Ranganath Misra vs. Union of India and Others [(2003) 7
SCC 133], this Court referred to the recommendations of Justice Verma
Committee, which has been taken note by the National Commission to Review the
Working of the Constitution, which are as under :
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. If the existing laws are inadequate to enforce the needed discipline,
the legislative vacuum needs to be filled. If legislation and judicial
directions are available and still there are violations of fundamental duties
by the citizens, this would call for other strategies for making them
desired enforceability can be better achieved by providing not merely for legal
sanctions but also combining it with social sanctions and to facilitate the
performance of the task through exemplar, role models. 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. The real task, therefore, is to devise methods
which are a combination of these aspects to ensure a ready acceptance of the programme
by the general citizenry and the youth, in particular.
Committee is strongly of the view that the significance of dignity of the
individual in all its facets and objective of overall development of the
personality of the individual must be emphasized in the curriculum at all the
stages of education. This requires consciousness of citizenship values which
are a combination of rights and duties, and together give rise to social
responsibilities. Methods must be devised to operationalize this concept as a
constitutional value in our educational curriculum and in co- curricular
activities, in schools and colleges." This Court directed that the
recommendations of the said Committee should be considered by the Central
Government in the right earnest and to take appropriate steps for the
right to fly the National Flag is a fundamental right but subject to
restrictions. The right is not unfettered, unsubscribed, unrestricted and unchannelled
one. Even assertion of the right to respectfully fly the flag vis- a-vis the
mere right to fly the flag is regulated and controlled by two significant
parliamentary enactments, namely, the Emblems and Names (Prevention of Improper
Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971.
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 of which one of
us, Sinha, J. was a party, in A. Satya Phaneendra vs. S.H.O. Kodad (PS) Nalgonda
and Others [2001 (2) ALT 141], wherein considering a letter enclosing therewith
a tri-coloured cloth resembling the National Flag which was sold as
handkerchief, the court referring to the provisions of the said Acts held and directed
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
The appropriate authorities including the Collector of Nalgonda District and
the Superintendent of Police, Nalgonda should have taken all steps to prevent
the misuse of the Indian National Flag.
They evidently have failed to perform their statutory duties.
Having regard to the fact that it has been stated in the letter dated
15.12.2000 that the writer thereof is not aware of the name(s) of the person(s)
manufacturing the same, we direct the State and in particular the District
Collector and the Superintendent of Police, Nalgonda District to take steps to
conduct investigation with regard to the misuse of the National Flag and see to
it that the offenders are brought to book. Let a copy of this order be sent to
the Chief Secretary to the Government of Andhra Pradesh so that necessary
directions to all concerned may be issued so as to prevent such misuse of the
Indian National Flag.
we dispose of this writ petition. No costs." We, however, hope and trust
that the Parliament, keeping in view the importance of the question involved in
this matter, shall make a suitable enactment for the aforementioned purpose.
the aforesaid reason, we hold that-
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 being an expression and manifestation of his allegiance and feelings
and sentiments of pride for the nation;
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 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 the National Flag ;
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 can be taken recourse to.
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.