# UNION OF INDIA v. NA VEEN JINDAL AND ANR

- **Citation:** [2004] 1 S.C.R. 1038
- **Court:** Supreme Court of India
- **Decided:** 2004-01-23
- **Case number:** Civil Appeal No. 2920 of 1996
- **Bench:** V.N. Khare, Brijesh Kumar, S.B. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-na-veen-jindal-and-anr-19637
- **Pages:** 36

## Headnote

Constitution of India, 1950:
Article 19(/)(a), 19(2)-Right to fly National Flag by Indian citizensC Held: Right to fly National Flag freely with respect and dignity is a fundamental
right within the meaning of Article 19(/)(a)-However, such right is not an
absolute right but a qualified one-It is subject lo reasonable restrictions
under Article 19(2)-Act of 1950 and Act of 1971 regulates and control the
use of National flag-Emblems and Names (Prevention of Improper Use) Act,
D 1950-Prevenlion of Insults to National Honour Act, 1971.
Article !3(3)(a)-Flag Code, whether law-Held: Flag Code contains
executive instructions of the Central Government and as such 1101 'law' within
the meaning of Article / 3(3)(a)-For the purpose of Article 19(2) it cannot
restrictively regulate the fi"ee exercise of right of flying the National FlagE However, Flag Code provides for preserving respect and dignity of the National
Flag and the same is to be followed-Article 19(/)(a) and 19(2)-Flag Code
of India.
F
Article 19(/) and 5/A-Right to fly National flag-Consideration in
context of fundamental duties-Held: Every right is coupled with duty-Right
to fly National flag is subject to restrictions enumerated in Article 51 A under
Part IV-A-However, justifiability or enforceability of Article 51 A not important.
Interpretation of the Constitution-Held: Constitution being a living
organ, its ongoing interpretation is permissible-Recourse can be taken to the
Directive Principles of State Policy or fundamental duties to balance
G fundamental/legal rights and regulatory measures/restrictions-Par/ IV and
!VA.
H
Constitution of India and Constitution of United Stales of America:
Rights under-Distinction between-Held: First amendment of the
1038
J,
U.OJ. v. NA VEEN JINDAL
.1039
American Constitution confers absolute righl of religion and free expression A
to a citizen whereas Article 19(/)(a) of Indian Constitution confers qualified
right of free speech and expression-Further American Constitution approves
right of burning the National Flag as an expression of anger but the Indian
Constitution does not--Constitution of India, 1950-Article ·19(1).
Respondent-Joint Managing Director of a public limited company B
was flying National flag at his official premises. Government officials
prevented him to do so as the same is not permissible under the Flag Code
of India. Respondent filed writ petition on the ground that no law could
prohibit flying of National flag by Indian citizens. It was contended that
flying of National flag with respect and dignity being a fundamental right C
and the Flag Code contains only executive instructions of the Government
of India, thus not being a law, it could not impose reasonable restrictions
within the meaning of Article 19(2) of the Constitution of India. High
Court allowed the petition holding that so long as a citizen of India mes
· · National flag in a respectful manner no restrictions can be imposed. Hence
the present appeals.
D
Dismissing the appeals, the Court
HELD: I. 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(l)(a) of the Constitution of India being an expression and manifestation E
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 Article 19(2)
of the Constitution. The right is not unfettered, unsubscribed, unrestricted
and unchannelled one. The Emblems and Names (Prevention of Improper F
Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971
regulates and control the use of the National Flag. 11072-F, G]
A. Satya Phaneendra v. S.H.O. Kodad (PS) Nalgonda and Ors .. (2001)
2 ALT 141, referred to.
1.2. National Flag indisputably stands for the whole nation, its
honour and glory, its ideals, aspirations, its hopes and achievements.
G
;.
National Flags are inten

## Text

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A
UNION OF INDIA
v.
NA VEEN JINDAL AND ANR.
JANUARY 23, 2004
B
[V.N. KHARE, CJ., BRIJESH KUMAR AND S.B. SINHA, JJ.]
Constitution of India, 1950:
Article 19(/)(a), 19(2)-Right to fly National Flag by Indian citizensC Held: Right to fly National Flag freely with respect and dignity is a fundamental
right within the meaning of Article 19(/)(a)-However, such right is not an
absolute right but a qualified one-It is subject lo reasonable restrictions
under Article 19(2)-Act of 1950 and Act of 1971 regulates and control the
use of National flag-Emblems and Names (Prevention of Improper Use) Act,
D 1950-Prevenlion of Insults to National Honour Act, 1971.
Article !3(3)(a)-Flag Code, whether law-Held: Flag Code contains
executive instructions of the Central Government and as such 1101 'law' within
the meaning of Article / 3(3)(a)-For the purpose of Article 19(2) it cannot
restrictively regulate the fi"ee exercise of right of flying the National FlagE However, Flag Code provides for preserving respect and dignity of the National
Flag and the same is to be followed-Article 19(/)(a) and 19(2)-Flag Code
of India.
F
Article 19(/) and 5/A-Right to fly National flag-Consideration in
context of fundamental duties-Held: Every right is coupled with duty-Right
to fly National flag is subject to restrictions enumerated in Article 51 A under
Part IV-A-However, justifiability or enforceability of Article 51 A not important.
Interpretation of the Constitution-Held: Constitution being a living
organ, its ongoing interpretation is permissible-Recourse can be taken to the
Directive Principles of State Policy or fundamental duties to balance
G fundamental/legal rights and regulatory measures/restrictions-Par/ IV and
!VA.
H
Constitution of India and Constitution of United Stales of America:
Rights under-Distinction between-Held: First amendment of the
1038
J,
U.OJ. v. NA VEEN JINDAL
.1039
American Constitution confers absolute righl of religion and free expression A
to a citizen whereas Article 19(/)(a) of Indian Constitution confers qualified
right of free speech and expression-Further American Constitution approves
right of burning the National Flag as an expression of anger but the Indian
Constitution does not--Constitution of India, 1950-Article ·19(1).
Respondent-Joint Managing Director of a public limited company B
was flying National flag at his official premises. Government officials
prevented him to do so as the same is not permissible under the Flag Code
of India. Respondent filed writ petition on the ground that no law could
prohibit flying of National flag by Indian citizens. It was contended that
flying of National flag with respect and dignity being a fundamental right C
and the Flag Code contains only executive instructions of the Government
of India, thus not being a law, it could not impose reasonable restrictions
within the meaning of Article 19(2) of the Constitution of India. High
Court allowed the petition holding that so long as a citizen of India mes
· · National flag in a respectful manner no restrictions can be imposed. Hence
the present appeals.
D
Dismissing the appeals, the Court
HELD: I. 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(l)(a) of the Constitution of India being an expression and manifestation E
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 Article 19(2)
of the Constitution. The right is not unfettered, unsubscribed, unrestricted
and unchannelled one. The Emblems and Names (Prevention of Improper F
Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971
regulates and control the use of the National Flag. 11072-F, G]
A. Satya Phaneendra v. S.H.O. Kodad (PS) Nalgonda and Ors .. (2001)
2 ALT 141, referred to.
1.2. National Flag indisputably stands for the whole nation, its
honour and glory, its ideals, aspirations, its hopes and achievements.
G
;.
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 H
>
1040
SUPREME COURT REPORTS
[2004] 1 S.C.R.
A National Flag has a great amount of significance. All countries try to strike
.'-
a balance between the two extremes-unrestricted use of flying flag and
the restricted use, based on the cherished values of their country, the
history behind the evolution of the flag in their country, etc. In order that
the respect and dignity of the flag be fostered and maintained, several
B
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. 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
A
<
by the flag in India's freedom struggle; importance of National Flag and
c Constituent Assembly Debates. Although interpretation of the Constitution
must primarily be based on the materials available in India, relevant rules
of the other countries are also taken for guidance. 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. [1046-C; 1048-C-E; 1052-B,q
D
Our National Flag by Lt. Cdr. K. V. Singh, Constituent Assembly
Debates 22nd .luly 1947, p. 766, 771 and 780, relied on.
National Flag of Japan, Basic Rules for Hoisting; Report of the National
Flag Committee, April 2001, p 14-15, referred to.
E
1.3. 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
F 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
G compulsorily used. Though not expressly stated, it must therefore give a
right of usage to the citizens, other than on the specific occasions specified.
11053-A, G]
,(
~·
1.4. National Anthem, National Flag and National Song are secular
H
symbols of the nationhood. They represent the supreme collective
expression of commitment and loyalty to the nation as well as patriotism
U.0.1. v. NA VEEN JINDAL
1041
>
for the country. They are riecessary adjunct of sovereignty being symbols A·
J.
and actions associated therewith. 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
bi;t also on their secular symbol unhidden. [1053-H I 054-A, Cl
1.5. The question whether there should be free and unrestricted use B
of nag allowed to citizens has to be considered not from the answer as to
whether there exists an express provision on the basis whereof a right to
·1
,A
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 c
the Constitution or in any other statute book, it may be held to be a part
of the fundamental right. Furthermore, the flying of National Flag being
symbol of expression would come within the purview of Article 19(1 )(a)
of the Constitution. II 054-C, D; 1057-A[
2.1. Flag Code of India concededly contains the executive instructions D
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 President under Government of India (Allocation
of Business) Rules, 1961 framed in terms of Article 77 of the Constitution.
E
A bare perusal of Article 13(3)(a) 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.
The necessity as regard determination of whether Flag Code is 'law' 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 F
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 ny the National Flag
is a fundamental or a natural right within the meaning of Article 19 of
G
the Constitution 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. (1054-E, F; 1054-G, H; 1055-A, BJ
).
2.2. Flag Code although is not a law within the meaning of Article
13(3)(a) of the Constitution for the purpose of Article 19(2) thereof, it H
1042
SUPREME COURT REPORTS
[2004] 1 S.C.R.
A would not restrictively regulate the free exercise cif 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. 11072-H; 1073-AI
B
Kharak Singh v. State of UP., AIR (1963) SC 1295; State of Madhya
Pradesh and Anr v. Thakur Bharat Singh, AIR (1967) SC It 70; Bijoe
Emmanuel and Ors. v. State of Kera/a and Ors., 119861 3 SCC 619; S.C.
Advocates-on-Record Assn. v. Union of India, 119931 4 SCC 44tand Punit
Rai v. Dinesh Chaudha1y, 120031 8 SCC 204, referred to.
;.. •
c
3.1. The Court has interpreted the provisions of the Constitution
either in the light of the Directive Principles of the State Policy as
contained in Part IV or fundamental duties under 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 under Part IV A of
D the Constitution. 11060-H; 1061-A, Bl
3.2. Every right 1s coupled with a duty. Part III of the Constitution
although confers rights, duties and regulations are inherent thereunder.
Such reasonable re_gulations have been found to be contained in the
provisions of Part III of the Constitution, apart from clauses 2 to 4 and 6
E of Article 19 of the Constitution. Thus, the right to fly National Flag is
subject to certain restrictions under Part IVA. The question as to whether
Article SIA is not justiciable or enforceable thus takes a backseat.
11068-H; 1069-AI
F
Indian Handicraft Emporium and Ors v. Union of India and Ors., JT
(2003) 7 SC 446; S. Rangarajan etc. v. P. Jagjivan Ram and Ors., 119891 2
...
SCC 574 and Ranganath Misra v. Union of India and Ors., 120031 7 SCC
133, referred to.
4. The distinction between the Constitution of India and Constitution
G of United States of America is that in U.S.A. the first amendment gives
an absolute right of religion, and free expression to a citiz•m, but under
Indian Constitution Article 19(1)(a) does not confer such an absolute right
,
of free speech and expression. It only provides for a qualific!d right. Such
-'.
right is subject to the regulatory measures contained in clause (2) thereof.
So long as the expression is confined to nationalism, patriotism and love
H for motherland, the use of the National Flag by way of expression of those
U.0.l. v. NA VEEN JINDAL
1043
sentiments would be a fundamental right. It cannot be used for commercial A
purpose or otherwise. The recent amendments made in the Flag Code by
Union of India and their submission 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 I 9{U(a) is concerned may
be adopted. However, the extreme proposition of law taken in the B
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. 11068-C-E; 1069-H; 1070-A-BI
Harold Omand Spence 41 L Ed 2d 842; Sidney Street v. Stale of New
York, 22 L Ed 2d 572; Texas v. Johnson, 105 L Ed 2d 345; US v. Shawn D. C
Eichman; 110 L Ed 2d 287 and Board of Educ. v. Barnetle, 319 US 624,
referred to.
5. Constitution 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. D
Interpretation 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. For the purpose of interpretation of the constitutional E
scheme and for· the purpose of maintaining a balance between the
fundamental/legal rights of citizen and the regulatory measures/
restrictions, both Parts IV-Directive Principles of the State Policy and Part
IV A-Fundamental Duties under the Constitution of India can be taken
recourse to. 11057-G, H; 1073-A, Bl
F
Jagdish Saran and Ors. v. Union of India, !1980) 2 SCC 768, relied
on.
E.P. Royappa v. Stale of Tamil Nadu., AIR (1974) SC 555; Maneka
Gandhi v. Union of India, AIR (1978) SC 597; R.D. Shelli v. International G
Airport Authority of India., AIR (1979) SC 1628; Ajay Hasia v. Khalid Mujib
AIR (1981) SC 487; Neelima Misra v. Harinder Kaur, 11990] 2 SCC 746;
People's Union.for Civil Liberties (PUCL) and Anr. etc. v. Union of India,
and Anr., 1200314 SCC 399; Kameshwar Prasadv. State of Bihar, AIR (1962)
SC 1166; l./.C. v. Professor Manubhai D. Shah, 1199213 SCC 637; Secretary,
Ministry of Information and Broadcasting v. Cricket Association of Bengal H
1044
SUPREME COURT REPORTS
[2004] I S.C.R.
A and Ors., 119951 2 SCC 161; Indian Express.Newspapers v. Union of India
;. ',
B
and Ors., 119851 1 SCC 641, Tata Press Ltd v. MTNL and Ors., 119951 5
SCC 139; Bennett Coleman & Co. v. Union of India and Ors., 119721 2 SCC
788; Gajanan Visheshwar Birjur v. Union of India, 11994) 5 SCC 550 and
Hindustan Times and Ors. v. State of U.P. and Anr., (2003) 1 SCC 591,
referred to.
Victor Chandler International v. Customs and Excise Commissioners and
Anr., 12000) 2 All ER 315; levy v. State of Victoria and Lange v. Australian
Broadcasting Corporation, Anne Twomey Sydney Law Review Vol l No 1,
,o1..
,
March 1997; Ford v. Quebec, 11988( 2 SCR 90; Irwin Toy v. Quebec
C (Attorney General), 11989) 1 SCR 927; National Bank of Canada v. R.C.U.,
(1984( 1 SCR 269 and CBC v. A.G.N.B., (19911 3 SCR 459, referred to.
The State of Play in the Constitutionally Implied Freedom of Political
Discussion and Bans on Electoral Canvassing in Australia, George Williams,
Par/iamentmy librmy law and Bills Digest Group Research Paper I 0, 1997, .
D referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2920 of
1996.
From the Judgment and Order dated 22.9.95 of the Delhi High Court in
E C.W.P.No. 420of1995 C.M. No. 5418/95.
WITH
C.A.No.453 of 2004.
Raju Ramachandran, Additional Solicitor General, P.P. Malhotra,
F Heman! Sharma, Ms. Sushma Suri, A.D.N. Rao, Brajesh Kumar and Ashok
Kumar Pandey for the Appellant.
Dr. A.M. Singhvi, Ms. Gauri Rasgotra, Amit Bhandari and Suman Jyoti
Khaitan for the Respondents.
G
The Judgment of the Court was delivered by
V.N. KHARE, CJ. Leave granted in the S.L.P.
In these appeals a short but an important question that arises for
consideration is whether the right to fly the National Flag by Indian citizen
H is a fundamental right within the meaning of Article 19(1)(a) of the
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE. CJ.]
1045
Constitution of India.
Naveen 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
A
was not allowed to do so by the Government officials on the ground that the B
same is impermissible under the Flag Code of India.
, ,;.,
Questioning the said action, the respondent filed a writ petition before
the High Court, inter a/ia, on the ground that no law could prohibit flying of
National Flag by Indian citizens. Flying of National Flag with respect and C
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.
Before the High Court, the Appellant-Union of India raised the following D
contentions :
"1. 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;
E
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."
F
The High Court after hearing the matter held : (I) The question as to G
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; (2) The restrictions
imposed by the Flag Code on flying the National Flag being not law within
H
1046
SUPREME COURT REPORTS
(2004] I S.C.R.
A the meaning 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
(hereinafter referred to as 'the ·1971 Act'), the same would constitute a penal
B offence; (4) Referring to the debates held in the Constituent Assembly as also
a passage from the book titled 'Our National Flag' by K.Y. 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.
c
Before 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
D achievements.
"A National Flag" as pointed by Lt. Cdr. K.Y. 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
E mast, "the heait of a true citizen is tilled with pride." In his foreword to this
very book, Mr. R. Yenkataraman, former President of India, referred to the
struggle for independence and said as under :
F
G
"Our 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 Ka lam Azad, K.M.
Panikar, Sarojini Naidu, C. Rajagopalachari, K.M. Munshi and Dr. B.R.
H Ambedkar. The Flag Committee having been constituted held several meetings
..
''
).
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE. Cl.)
1047
and studied the question in depth. It arrived at the following decision :
"(a) The tlag 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 communitie~ in India.
A
(b) The tlag should be tricoloured, with three bands horizontally B
arranged.
(c) The colours should be in the following order: saffron on top,
white in the middle and dark green at the bottom.
(d) The emblem of the flag should be an exact reproduction of the
wheel on the capital of Moka's Sarnath Pillar, superimposed in C
the middle of the central white band.
(e) 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 Flag. D
The responses to this motion are extremely significant and serve as apt
retlections 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.
E
As 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 F
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 th.e future. This flag flies
today as the flag of the nation, and it should be the duty and privilege of G
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 H
>
1048
SUPREME COURT REPORTS
(2004] l S.C.R.
A important and other things- the colours etc, that it contains·· are immaterial.
>- \
The 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."
B
The resolution which was adopted as under :
c
"Resolved 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 Sarnatl1 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
D embody each nation's particular character and proclaim the coμntry'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, mutilatio~ and destruction of the flag. At this stage we would like
E to deal with the question a> 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.
F RESTRICTIONS ON THE USE OF FLAG IN DIFFERENT COUNTRIES :
S.No. Name of the country
G I.
Australia
2.
Brazil
3.
Canada
4.
China
H
Whether free use of
National Flag is allowed to
an individual
Yes
Yes
Yes
Yes, even on certain
occasions and places
.._
•.
'· .
(
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.)
1049
}
5.
Egypt
No
A
.).,,
6.
Germany
No
7.
Indonesia
No
s:
Italy
No
9.
Japan
No
B
IO.
Malaysia
Yes
, >.
11.
Mexico
No
12.
Miramar
No
13.
New Zealand
Yes
c
14.
Pakistan
No
15.
Sri Lanka
No
16.
Sweden
No
D
17.
Trinidad & Tobago
No
18.
United 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 E
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 F
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 G
along with the flag of the other person's country, the ... specifications about
)'
size, etc. are to be followed."(Se.e 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 noiified by the government.
Similarly, Sri Lanka also permits display of the National Flag on days of H
1050
SUPREME COURT REPORTS
[2004) I S.C.R.
A national importance only. (See the Report of the National Flag Committee,
April 2001, pp. 14-15)
Elsewhere among the Cominonwealth 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
B 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
C 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
D 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.
E Ultimately a committee was constituted by the appellant on or about
18.10.2000 submitted its repo1t in April 2001 upon obtaining the views of the
State Governments and the Union Territory Administrations as regard the
F
G
H
questions :
(a)
(b)
(c)
Whether there is need to liberalize the use of the National Flag.
If so, to what extent?
Whether the State Government foresee any problems in liberalizing
the use of the National Flag.
If 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.
(d) Whether the provisions of the Flag Code-India should have
statutory back-up.
The Committee constituted by the Central Government took into
>
)
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.]
1051
consideration the history and genesis of the Flag and inler a/ia noticed :
"3.1 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,
A
its ideals, aspirations, its hopes and achievements. It is a beacon B
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 C
the Cabinet whereafter the Flag Code of India 2002 was issued which came
into force with effect from 26.1.2002.
The said Flag Code has been divided into three parts. Part I of the Code
contains the description of the National Flag. Part II provides for the mode D
and manner of hoisting/display/use of National Flag by members of the public,
private organizations, educational institutions etc. Part Ill 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 E
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 :
"(i) the Flag shall not be used for commercial purposes in violation
of the emblem and Names (Prevention of Improper U~e) Act,
I 950;"
F
Section I of Part Ill provides for defence installations/Heads of Missions/
Posts whereas Section 11 provides for official display. Section II of Part II G
provides for as to how the National Flag may be hoisted in educational
institutions. Sectior. Ill of Part Ill 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 ho>V misuse of the
National Flag should be prevented. Section VI provides for salute of the Flag. H
1052
SUPREME COURT REPORTS
[2004] 1 S.C.R.
A Section VII provides that display with flags of other Nations and of United
Nations.
B
c
D
E
F
G
H
Although 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.
It can 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 cherish1:d 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
freedom struggle.
There 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 pa11 of the citizens.
A sudden swing to a liberal approach in the matter may create problems,
pa11icularly in the matter of ensuring that the correct usag;es 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.
Ho"'.ever, 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
.....
~
}.
f
1
U.0.1. v. NA VEEN JINDAL [V.N. KHARE. CJ.]
1053
> A
if the national Flag is meant for Government use only and the A
•
peuple 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.
•
With the electronic media and satellite communication becoming
popular, it is very difficult to ensure that public display of the B
National Flag is avoided. For instance, in various international
sports or cultural events, people identify themselves with their
country by displacing the National Flag. It is an expression of
>
pride. It is an expression of genuine enthusiasm. If the restrictions
imposed on the use of the National Flag are implemented c
scrupulously, it would amount to discouraging the Indian citizens
or Indian nationals from identifying themselves with the Flag of
the country.
•
The restrictions imposed on the use of the National Flag should
be commensurate with the international practices being adopted D
by various democratic countries and the Government should not
impose any restriction, which distances people from the National
Flag.
Thus, 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 E
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. 1t must certainly be treated with the utmost respect and dignity. This
might not be possible without imposing any restrictions on its use. But one F
can see from the global scenario, that the major trend is to protect the flag
against mutilation, destruction, etc. and not to prevent irllfividuals 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. G
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 specified.
H
1054
SUPREME COURT REPORTS
[2004] I S.C.R.
A
Then "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. They are necessary adjunct
of sovereignty being symbols and actions associated therewith. Can an Indian
B 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. The beauty of the Indian Constitution is
C 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 a11d
patriotism can be judged not only by giving effect to the conslitutionalism
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
E
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.
Before 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.