In this case, the question was before the court 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.
The Facts
Naveen Jindal, who was a Joint Managing Director of a public limited company 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.
Questioning 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 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.
The Case before Supreme Court
The Supreme Court analysed the question as follow-
Flying of National Flag being symbol of expression would come within the purview of Article 19(1) (a) of the Constitution.
This 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.
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. Flag 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 disrespect.
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.
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 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:
“9. 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.
10. 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…”
11. 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.
12. They evidently have failed to perform their statutory duties. 13. 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. Accordingly, 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.
Held by the Court-
For the aforesaid reason, we hold that-
(i) 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;
(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 of India;
(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 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.
(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-`-vis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India can be taken recourse to.
Reference
Union of India v. Naveen Jindal (2004)