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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.

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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.

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(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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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;"

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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

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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

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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.