THE JUDGMENT IN NAVEEN JINDAL CASE
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
SPECIAL LEAVE PETITON (C) NO.15849 OF 1994
V.N. KHARE,C.J.I.
In this appeal a short but an important question that arises for consideration is whether the right to fly the National Flag by Indian citizen is a fundamental right within the meaning of Article 19(1)(a) of the Constitution of India.
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.
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 ImproperUse) 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 thisvery 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.
(b) The flag should be tricoloured, with threebands 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 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
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 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 where after 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 ublic, 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 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 theflag. 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.
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 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 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.
Contd: In Page 10
Source: JUDIS
