http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 22  

CASE NO.: Appeal (civil)  2920 of 1996

PETITIONER: Union of India                                                   

RESPONDENT: Naveen Jindal & Anr.                                             

DATE OF JUDGMENT: 23/01/2004

BENCH: CJI, Brijesh Kumar & S.B. Sinha  

JUDGMENT:

J U D G M E N T With  

CIVIL APPEAL NO. 453 OF 2004 [ARISING OUT OF S.L.P. (C) NO.15849 OF 1994]

V.N. KHARE,C.J.I.

       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 is  a fundamental right within the meaning of Article 19(1)(a) of the  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  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.

       Before the High Court, the Appellant-Union of India  raised the  following 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;

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 22  

3.  That the question of permitting free use of  National Flag or to restrict its use is a matter of  policy option available to the Parliament and to the  Government.  Since it is a policy option  constitutionally permissible, the courts ought not  to interfere with the same."

        The High Court after hearing the matter  held : (1) 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; (2) 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; (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 offence; (4) Referring to the debates held in the  Constituent Assembly as also a passage from the book titled ’Our National  Flag’ by K.V. Singh, the High Court observed that the citizens were required  to be educated by issue of Flag Code and the National Flag must be flown in  a respectful manner and so long as a citizen of India does so, no restriction  can be imposed on the basis of instructions contained in the Flag Code.

       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  achievements.   

"A 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 :

"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  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 : "(a) 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 22  

(b) The flag should be tricoloured, with three  bands horizontally 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 Asoka’s  Sarnath Pillar, superimposed in 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.  The 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.  

       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  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.  This 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.  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."

The resolution which was adopted as under : "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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 22  

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.           

RESTRICTIONS ON THE USE OF FLAG IN DIFFERENT COUNTRIES :

S.No. Name of the country Whether free use  of National Flag  is allowed to an  individual

1. Australia Yes 2. Brazil Yes 3. Canada Yes 4. China Yes, even on  certain occasions  and places  5. Egypt No 6. Germany No 7. Indonesia No 8. Italy No 9. Japan No 10. Malaysia Yes 11. Mexico No 12. Miramar No

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 22  

13. New Zealand Yes 14. Pakistan No 15. Sri Lanka No 16. Sweden No 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  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.   Ultimately a committee was constituted by the appellant on or about

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 22  

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 :          (a) Whether there is need to liberalize the use of  the National Flag.  If so, to what extent?

(b)     Whether the State Government  foresee any  problems in liberalizing the use of the  National Flag.

(c)     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  consideration the history and genesis of the Flag and inter alia 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, 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.   

The said Flag Code has been divided into three parts. Part I of the  Code contains the description of the National Flag.  Part II provides for the  mode and manner of hoisting/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 :

"(i) 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 22  

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.

       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 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 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 part of the  citizens. A sudden swing to a liberal approach in the matter may create  problems, particularly in the matter of ensuring that the correct usages  regarding the National Flag are observed by the citizens at large.  Unrestricted use of the National Flag may result in commercial exploitation  of the Flag. It may be difficult to detect all such instances and take necessary  action. Unrestricted use of the Flag may not attract the same level of respect  and reverence from the citizens as at present. The unrestricted use of the  National Flag may result in its indiscriminate use in processions, meetings,  etc. Instances of insults to the National Flag as a matter of protest may also  occur.          However, 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.  ?       With 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.  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 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  by various democratic countries and the Government should not  impose any restriction, which distances people from the  National Flag.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 22  

       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  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 specified.  

       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 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 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.  

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.  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 :

"13. (3) (a) "Law" includes any Ordinance, order  bye-law, rule, regulation, notification, custom or  usage having in the territory of India the force of  law."

       A bare perusal of the said provision would clearly go to show that  executive instructions would not fall within the aforementioned category.   Such executive instructions may have the force of law for some other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 22  

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.           In Kharak Singh vs. State of U.P. [AIR 1963 SC 1295], this Court  held :          "Though 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 police officers.   They 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  619].

       In S.C. Advocates-on-Record Assn. vs. Union of India [(1993) 4 SCC  441], it was held :

"Constitution is the "will" of the people whereas  the statutory laws are the creation of the legislators  who are the elected representatives of the people.   Where the will of the legislature-declared in the  statutes-stands in opposition to that 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 :          "The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 22  

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].

Now we 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.   By 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 :             (2)"Nothing 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.   The 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. With a 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; (2) Constituent Assembly Debates; and (3) Rules existing in other  countries, which have already been adverted to.  As 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.                   In Victor Chandler International vs. Customs and Excise  Commissioners and another [2000) 2 All ER 315 at p. 322], it was stated :  "27. 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), p.686:

       ’(2) 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....(3) A fixed-time  Act is intended to be applied in the same way  whatever changes might occur after its passing.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 22  

Updating construction is not therefore applied to it.

28.     These 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".

       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.

       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, 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.   

       In 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 communication’.   

       We may note some case law from Australia, in this connection :         In 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 :   

"The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 22  

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 :  

"Despite 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.  Article 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 (1) as assuring individual self-fulfillment, (2) as a means of  attaining the truth, (3) as a method of securing participation by the members  of the society in social, including political, decision-making, and (4) as  maintaining the balance between stability and change in society."   Constitutional 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.  The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 22  

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). For 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.         This 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.   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.      

In People’s Union for Civil Liberties (PUCL) and Another etc. vs.  Union of India and Another [(2003) 4 SCC 399 at page 403], this Court  held: "...It is established that fundamental rights  themselves have no fixed content, most of them  are empty vessels into which each generation must  pour its content in the light of its experience.  The  attempt of the court should be to expand the reach  

and ambit of the fundamental rights by process of  judicial interpretation.  The Constitution is  required to be kept young, energetic and alive".

             The 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].   

       Different 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 SCC 746].                   

                So far 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 :

"Without going very much into the niceties of  language it might be broadly stated that a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 22  

demonstration is a visible manifestation of the  feelings or sentiments of an individual or a group.   It is thus a communication of one’s ideas to others  to whom it is intended to be conveyed.  It is in  effect therefore a form of speech or of expression,  because speech need not be vocal since signs made  by a dumb person would also be a form of speech."                           In L.I.C. vs. Professor Manubhai D. Shah, [(1992) 3 SCC 637], it  was observed :            "5. 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." 6. A 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.  7. The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 22  

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 society..." 8. The 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.  The 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 India.   

       In Secretary, Ministry of Information and Broadcasting vs. Cricket  Association of Bengal and Others [(1995) 2 SCC 161], it was observed :

       "The 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.   Equally 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 22  

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.  Hence 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.  

       In Indian Express Newspapers vs. Union of India & Ors. [(1985) 1  SCC 641], the  law is stated in the following terms :

"Freedom of expression, as learned writers have  observed, has four broad social purposes to serve :  (i) it helps an individual to attain self fulfillment,  (ii) it is assists in the discovery of truth, (iii) it  strengthens the capacity of an individual in  participating in decision-making and (iv) it  provides a mechanism by which it would be  possible to establish a reasonable balance between  stability and social change.  All members of  society should be able to form their  own beliefs  and communicate them freely to others.  In sum,  the fundamental principle involved here is the  people’s right to know.  Freedom of speech and  expression should, therefore, receive a generous  support from all those who believe in the  participation of people in the administration."  

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.  

       In Tata Press Ltd. vs. MTNL and Others [(1995) 5 SCC 139], it was  observed :         "In 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.   The economic system in a democracy would be  handicapped without there being freedom of  "commercial speech".   

Thus, 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.  

       In Bennett Coleman & Co. vs. Union of India & Ors. [(1972) 2 SCC  788] it was held : "80. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 22  

democracy. Steel will yield products of steel."

       It was further observed : "97. 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 : 10. 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 :  "Thought 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 :         "It 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 22  

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  journalists.   In 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 : "Congress 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.

In 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.  Moreover, 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 :  "we 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 : "But 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 : "Government 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 :  "Freedom 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. If 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 22  

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.

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.

Last 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.

Every right is coupled with a duty.  Part III of the Constitution of  India although confers rights, duties and regulations are inherent thereunder.  Such 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.   Thus, this right is subject to certain restrictions which can be read  from Chapter IV A.  Article 51A(c) reads as under:

"(c) 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 : "The 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 following terms:

"48-A. 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."

"51-A. Fundamental duties. -- It shall be the  duty of every citizen of India --                                  ...     ...     ...     ...     ...     ...     ...

(g)     to protect and improve the natural environment  including forests, lakes, rivers and wild life, and  to have compassion for living creatures;"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 22  

               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.   What 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.

The 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.   This Court in S. Rangarajan etc. vs. P. Jagjivan Ram and Others  [(1989) 2 SCC 574], laid down the law in the following terms :     "We 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 : "Duties are observed by individuals as a result of  dictates of the social system and the environment  in which one lives, under the influence of role  models, or on account of punitive provisions of  law.  It may be necessary to enact suitable  legislation wherever necessary to require  obedience of obligations by the citizens.  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 operational.         The desired enforceability can be better  achieved by providing not merely for legal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 22  

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.         The 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 implementation thereof.         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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 22  

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. 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.         For the reasons aforementioned, we do not find any merit in these  appeals which are accordingly dismissed.  But in the facts and circumstances  of this case, there shall be no order as to costs.