Holding

The right to fly the Indian National Flag is a fundamental right under Article 19(1)(a) but is a qualified right subject to reasonable restrictions under Article 19(2), regulated by the 1950 and 1971 Acts, while the Flag Code, though not a law, must be followed for respect and dignity.

Summary

The Supreme Court examined whether the right to fly the Indian National Flag is a fundamental right under Article 19(1)(a) of the Constitution. It held that such a right exists but is not absolute; it is subject to reasonable restrictions under Article 19(2). The Court clarified that the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 provide the statutory framework regulating the flag’s use, while the Flag Code of India, though not a law under Article 13, must be observed to preserve respect and dignity. The Court rejected the contention that the Flag Code could not impose any restriction and affirmed that the right to fly the flag is a qualified freedom. Consequently, the appeals filed by the Union of India were dismissed.

Issues considered

The existence of a fundamental right to fly the National Flag under Article 19(1)(a).
Whether the right to fly the Flag is absolute or subject to reasonable restrictions under Article 19(2).
Whether the Flag Code of India qualifies as a 'law' within the meaning of Article 13(3)(a) for the purpose of imposing restrictions.
The applicability of the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 to the flying of the Flag.
The relevance of Article 51A (fundamental duties) in limiting the right.

Subjects

Fundamental RightArticle 19National FlagFlag Code of IndiaReasonable RestrictionsEmblems and Names ActPrevention of Insults to National Honour ActConstitutional LawFreedom of ExpressionFundamental DutiesDirective Principles

Judgment

A UNION OF INDIA
v.
NA VEEN JINDAL AND ANR.

JANUARY 23, 2004

B [V.N. KHARE, CJ., BRIJESH KUMAR AND S.B. SINHA, JJ.]

Constitution of India, 1950:

Article 19(/)(a), 19(2)-Right to fly National Flag by Indian citizens-
C Held: Right to fly National Flag freely with respect and dignity is a fundamental
right within the meaning of Article 19(/)(a)-However, such right is not an
absolute right but a qualified one-It is subject lo reasonable restrictions
under Article 19(2)-Act of 1950 and Act of 1971 regulates and control the
use of National flag-Emblems and Names (Prevention of Improper Use) Act,
D 1950-Prevenlion of Insults to National Honour Act, 1971.

Article !3(3)(a)-Flag Code, whether law-Held: Flag Code contains
executive instructions of the Central Government and as such 1101 'law' within
the meaning of Article / 3(3)(a)-For the purpose of Article 19(2) it cannot
restrictively regulate the fi"ee exercise of right of flying the National Flag-
E However, Flag Code provides for preserving respect and dignity of the National
Flag and the same is to be followed-Article 19(/)(a) and 19(2)-Flag Code
of India.

Article 19(/) and 5/A-Right to fly National flag-Consideration in
context offundamental duties-Held: Every right is coupled with duty-Right
F to fly National flag is subject to restrictions enumerated in Article 51 A under
Part IV-A-However, justifiability or enforceability ofArticle 51 A not important.

Interpretation of the Constitution-Held: Constitution being a living
organ, its ongoing interpretation is permissible-Recourse can be taken to the
Directive Principles of State Policy or fundamental duties to balance
G fundamental/legal rights and regulatory measures/restrictions-Par/ IV and
!VA.

Constitution of India and Constitution of United Stales of America:

Rights under-Distinction between-Held: First amendment of the
H 1038
U.OJ. v. NA VEEN JINDAL .1039

J,
American Constitution confers absolute righl of religion and free expression A
to a citizen whereas Article 19(/)(a) of Indian Constitution confers qualified
right offree speech and expression-Further American Constitution approves
right of burning the National Flag as an expression of anger but the Indian
Constitution does not--Constitution of India, 1950-Article ·19(1).

Respondent-Joint Managing Director of a public limited company B
was flying National flag at his official premises. Government officials
prevented him to do so as the same is not permissible under the Flag Code
of India. Respondent filed writ petition on the ground that no law could
prohibit flying of National flag by Indian citizens. It was contended that
flying of National flag with respect and dignity being a fundamental right C
and the Flag Code contains only executive instructions of the Government
of India, thus not being a law, it could not impose reasonable restrictions
within the meaning of Article 19(2) of the Constitution of India. High
Court allowed the petition holding that so long as a citizen of India mes
· · National flag in a respectful manner no restrictions can be imposed. Hence
the present appeals. D
Dismissing the appeals, the Court

HELD: I. I. Right to fly the National Flag freely with respect and
dignity is a fundamental right of a citizen within the meaning of Article
19(l)(a) of the Constitution of India being an expression and manifestation E
of his allegiance and feelings and sentiments of pride for the nation. The
fundamental right to fly National Flag is not an absolute right but a
qualified one being subject to reasonable restrictions under Article 19(2)
of the Constitution. The right is not unfettered, unsubscribed, unrestricted
and unchannelled one. The Emblems and Names (Prevention of Improper F
Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971
regulates and control the use of the National Flag. 11072-F, G]

A. Satya Phaneendra v. S.H.O. Kodad (PS) Nalgonda and Ors.. (2001)
2 ALT 141, referred to.
G
1.2. National Flag indisputably stands for the whole nation, its
honour and glory, its ideals, aspirations, its hopes and achievements.
;. National Flags are intended to project the identity of the country they
represent and foster national spirit. Their distinctive designs and colours
embody each nation's particular character and proclaim the country's
separate existence. Thus, it is veritably common to all nations that a H
>
1040 SUPREME COURT REPORTS [2004] 1 S.C.R.

A National Flag has a great amount of significance. All countries try to strike
.'-
a balance between the two extremes-unrestricted use of flying flag and
the restricted use, based on the cherished values of their country, the
history behind the evolution of the flag in their country, etc. In order that
the respect and dignity of the flag be fostered and maintained, several
countries have laid down rules relating to the use, display, etc. of the flag,
B along with rules to provide against the burning, mutilation and destruction
of the flag. Thus, in order to discern whether an individual has a right to
display the flag in India, one will have to discern what are the advantages
and disadvantages of free use and balance that with the vital role played A <
by the flag in India's freedom struggle; importance of National Flag and
c Constituent Assembly Debates. Although interpretation of the Constitution
must primarily be based on the materials available in India, relevant rules
of the other countries are also taken for guidance. The stand taken by other
countries definitely has a bearing on the course India has taken so far and
the course to be adopted in the future. [1046-C; 1048-C-E; 1052-B,q

D Our National Flag by Lt. Cdr. K. V. Singh, Constituent Assembly
Debates 22nd .luly 1947, p. 766, 771 and 780, relied on.

National Flag ofJapan, Basic Rules for Hoisting; Report of the National
Flag Committee, April 2001, p 14-15, referred to.

E 1.3. The flag is definitely one of the most revered objects in our
society. It must certainly be treated with the utmost respect and dignity.
This might not be possible without imposing any restrictions on its use.
But one can see from the global scenario that the major trend is to protect
the flag against mutilation, destruction, etc. and not to prevent individuals
from having any access to the flag, making its use a virtual exclusive
F
privilege of the Government. Since all Indians fought for freedom, it can
never be the intention to deny them use of their National Flag-a symbol
of their freedom in entirety. Thus, one can conclude that the basic intention
is to provide against the destruction, mutilation, etc. of the Flag and to
provide certain basic level rules for when and how it should be
G compulsorily used. Though not expressly stated, it must therefore give a
right of usage to the citizens, other than on the specific occasions specified.
11053-A, G] ~·

,(

1.4. National Anthem, National Flag and National Song are secular
symbols of the nationhood. They represent the supreme collective
H expression of commitment and loyalty to the nation as well as patriotism
U.0.1. v. NA VEEN JINDAL 1041
> J. for the country. They are riecessary adjunct of sovereignty being symbols A·
and actions associated therewith. The unity and integrity of India if to be
perceived in diverse situation, the feeling of loyalty, commitment and
patriotism can be judged not only by giving effect to the constitutionalism
bi;t also on their secular symbol unhidden. [1053-H I 054-A, Cl

1.5. The question whether there should be free and unrestricted use B
of nag allowed to citizens has to be considered not from the answer as to
whether there exists an express provision on the basis whereof a right to
·1 ,A fly the National Flag can be rested or whether there is anything in the
Constitution prohibiting or denying the exercise of such a right. If flying
of a National Flag is considered in absence of any denial thereof either in
the Constitution or in any other statute book, it may be held to be a part
c
of the fundamental right. Furthermore, the flying of National Flag being
symbol of expression would come within the purview of Article 19(1 )(a)
of the Constitution. II 054-C, D; 1057-A[

2.1. Flag Code of India concededly contains the executive instructions D
of the Central Government. It is stated that the Ministry of Home Affairs,
which is competent to issue the instructions contained in the Flag Code
and all matters relating thereto are one of the items of business allocated
to the said Ministry by President under Government of India (Allocation
of Business) Rules, 1961 framed in terms of Article 77 of the Constitution.
A bare perusal of Article 13(3)(a) would clearly go to show that executive E
instructions would not fall within the aforementioned category. Such
executive instructions may have the force of law for some other purposes.
The necessity as regard determination of whether Flag Code is 'law' has
arisen as the Parliament has not chosen to enact a statute which would
_,,.,. confer at least a statutory right upon a citizen of India to fly a National F
Flag. An executive instruction issued by the appellant herein can any time
be replaced by another set of executive instructions and thus deprive
Indian citizens· from flying National Flag. Furthermore, such a question
will also arise in the event if it be held that right to ny the National Flag
is a fundamental or a natural right within the meaning of Article 19 of
the Constitution as for the purpose of regulating the exercise of right of G
freedom guaranteed under Article 19(1)(a) to (e) and (g) a law must be
....
). made. (1054-E, F; 1054-G, H; 1055-A, BJ

2.2. Flag Code although is not a law within the meaning of Article
13(3)(a) of the Constitution for the purpose of Article 19(2) thereof, it
H
1042 SUPREME COURT REPORTS [2004] 1 S.C.R.

A would not restrictively regulate the free exercise cif the right of flying the
'
national flag. However, the Flag Code to the extent it provides for
preserving respect and dignity of the National Flag, the same deserves to
be followed. 11072-H; 1073-AI

Kharak Singh v. State of UP., AIR (1963) SC 1295; State of Madhya
B Pradesh and Anr v. Thakur Bharat Singh, AIR (1967) SC It 70; Bijoe
Emmanuel and Ors. v. State of Kera/a and Ors., 119861 3 SCC 619; S.C.
Advocates-on-Record Assn. v. Union of India, 119931 4 SCC 44tand Punit
Rai v. Dinesh Chaudha1y, 120031 8 SCC 204, referred to. ;.. •
3.1. The Court has interpreted the provisions of the Constitution
c either in the light of the Directive Principles of the State Policy as
contained in Part IV or fundamental duties under Part IVA thereof or
both. Applying the said test and keeping in view the fact that the right to
fly the National Flag is not an absolute right but a qualified right, such
right can be read with having regard to Article 51 A under Part IV A of
D the Constitution. 11060-H; 1061-A, Bl

3.2. Every right 1s coupled with a duty. Part III of the Constitution
although confers rights, duties and regulations are inherent thereunder.
Such reasonable re_gulations have been found to be contained in the
provisions of Part III of the Constitution, apart from clauses 2 to 4 and 6
E of Article 19 of the Constitution. Thus, the right to fly National Flag is
subject to certain restrictions under Part IVA. The question as to whether
Article SIA is not justiciable or enforceable thus takes a backseat.
11068-H; 1069-AI

Indian Handicraft Emporium and Ors v. Union of India and Ors., JT
F (2003) 7 SC 446; S. Rangarajan etc. v. P. Jagjivan Ram and Ors., 119891 2 ...
SCC 574 and Ranganath Misra v. Union of India and Ors., 120031 7 SCC
133, referred to.

4. The distinction between the Constitution of India and Constitution
of United States of America is that in U.S.A. the first amendment gives
G
an absolute right of religion, and free expression to a citiz•m, but under
Indian Constitution Article 19(1)(a) does not confer such an absolute right ,
of free speech and expression. It only provides for a qualific!d right. Such -'.
right is subject to the regulatory measures contained in clause (2) thereof.
So long as the expression is confined to nationalism, patriotism and love
H for motherland, the use of the National Flag by way of expression of those
U.0.l. v. NA VEEN JINDAL 1043
sentiments would be a fundamental right. It cannot be used for commercial A
purpose or otherwise. The recent amendments made in the Flag Code by
Union of India and their submission that the Central Government is not
against the flying of the Flag by an individual is itself indicative of the
fact that a liberal construction so far as Article I 9{U(a) is concerned may
be adopted. However, the extreme proposition of law taken in the B
American decisions that burning of the flag is an expression of anger
cannot be accepted in India as it would amount to disrespect of the
National Flag. 11068-C-E; 1069-H; 1070-A-BI

Harold Omand Spence 41 L Ed 2d 842; Sidney Street v. Stale of New
York, 22 L Ed 2d 572; Texas v. Johnson, 105 L Ed 2d 345; US v. Shawn D. C
Eichman; 110 L Ed 2d 287 and Board of Educ. v. Barnetle, 319 US 624,
referred to.

5. Constitution being a living organ, its ongoing interpretation is
permissible. The supremacy of the Constitution is essential to bring social
changes in the national polity evolved with the passage of time. D
Interpretation of the Constitution is a difficult task. While doing so, the
* constitutional courts are not only required to take into consideration their
own experience over the time, the international treatise and covenants but
also keeping the doctrine of flexibility in mind. This Court times without
number has extended the scope and extent of the provisions of the
fundamental rights. For the purpose of interpretation of the constitutional E
scheme and for· the purpose of maintaining a balance between the
fundamental/legal rights of citizen and the regulatory measures/
restrictions, both Parts IV-Directive Principles of the State Policy and Part
IV A-Fundamental Duties under the Constitution of India can be taken
recourse to. 11057-G, H; 1073-A, Bl F
Jagdish Saran and Ors. v. Union of India, !1980) 2 SCC 768, relied
on.

E.P. Royappa v. Stale of Tamil Nadu., AIR (1974) SC 555; Maneka
Gandhi v. Union of India, AIR (1978) SC 597; R.D. Shelli v. International G
Airport Authority of India., AIR (1979) SC 1628; Ajay Hasia v. Khalid Mujib
AIR (1981) SC 487; Neelima Misra v. Harinder Kaur, 11990] 2 SCC 746;
People's Union.for Civil Liberties (PUCL) and Anr. etc. v. Union of India,
and Anr., 1200314 SCC 399; Kameshwar Prasadv. State of Bihar, AIR (1962)
SC 1166; l./.C. v. Professor Manubhai D. Shah, 1199213 SCC 637; Secretary,
Ministry of Information and Broadcasting v. Cricket Association of Bengal H
1044 SUPREME COURT REPORTS [2004] I S.C.R.

A and Ors., 119951 2 SCC 161; Indian Express.Newspapers v. Union of India ;. ',
and Ors., 119851 1 SCC 641, Tata Press Ltd v. MTNL and Ors., 119951 5
SCC 139; Bennett Coleman & Co. v. Union of India and Ors., 119721 2 SCC
788; Gajanan Visheshwar Birjur v. Union of India, 11994) 5 SCC 550 and
Hindustan Times and Ors. v. State of U.P. and Anr., (2003) 1 SCC 591,
referred to.
B
Victor Chandler International v. Customs and Excise Commissioners and
Anr., 12000) 2 All ER 315; levy v. State of Victoria and Lange v. Australian
Broadcasting Corporation, Anne Twomey Sydney Law Review Vol l No 1, ,o1.. ,

March 1997; Ford v. Quebec, 11988( 2 SCR 90; Irwin Toy v. Quebec
C (Attorney General), 11989) 1 SCR 927; National Bank of Canada v. R.C.U.,
(1984( 1 SCR 269 and CBC v. A.G.N.B., (19911 3 SCR 459, referred to.

The State of Play in the Constitutionally Implied Freedom of Political
Discussion and Bans on Electoral Canvassing in Australia, George Williams,
Par/iamentmy librmy law and Bills Digest Group Research Paper I 0, 1997, .
D referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2920 of
1996.
From the Judgment and Order dated 22.9.95 of the Delhi High Court in
E C.W.P.No. 420of1995 C.M. No. 5418/95.
WITH

C.A.No.453 of 2004.

Raju Ramachandran, Additional Solicitor General, P.P. Malhotra,
F Heman! Sharma, Ms. Sushma Suri, A.D.N. Rao, Brajesh Kumar and Ashok
Kumar Pandey for the Appellant.

Dr. A.M. Singhvi, Ms. Gauri Rasgotra, Amit Bhandari and Suman Jyoti
Khaitan for the Respondents.

G The Judgment of the Court was delivered by

V.N. KHARE, CJ. Leave granted in the S.L.P.

In these appeals a short but an important question that arises for
consideration is whether the right to fly the National Flag by Indian citizen
H is a fundamental right within the meaning of Article 19(1)(a) of the
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE. CJ.] 1045
Constitution of India. A
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 B
same is impermissible under the Flag Code of India.

, ,;., Questioning the said action, the respondent filed a writ petition before
the High Court, inter a/ia, on the ground that no law could prohibit flying of
National Flag by Indian citizens. Flying of National Flag with respect and C
dignity being a fundamental right, the Flag Code which contains only executive
instructions of the Government of India and, thus, being not a law, cannot be
considered to have imposed reasonable restrictions in respect thereof within
the meaning of clause (2) of Article 19 of the Constitution of India.

Before the High Court, the Appellant-Union of India raised the following D
contentions :

"1. That the Central Government is authorised to impose restrictions
on the use of National Flag at any public place or building and can
regulate the same by the authority vested in it under Section 3 of the
Emblems and Names (Prevention of Improper Use) Act, 1950; E
2. That the restriction imposed by the Act and orders issued by the
Government are constitutionally valid being reasonable restrictions
on the Freedom of Speech and Expression under Article 19(2) of the
Constitution.

3. That the question of permitting free use of National Flag or to
F
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 : (I) The question as to G
whether the provisions of the Emblems and Names (Prevention of Improper
Use) Act, 1950 (hereinafter referred to as 'the 1950 Act',, for the sake of
brevity) have been violated or not is a matter which would fall for
determination of the court of law and not by the executive; (2) The restrictions
imposed by the Flag Code on flying the National Flag being not law within
H
1046 SUPREME COURT REPORTS (2004] I S.C.R.

A the meaning clause (2) of Article 19 of the Constitution of India, the same
cannot be construed to be a penal provision; (3) However, if contravention
of any of those instructions and guidelines had been issued under the 1950
Act or under the Prevention of Insults to National Honour Act, 1971

B
(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.Y. Singh, the High
Court observed that the citizens were required to be educated by issue of Flag
Code and the National Flag must be flown in a respectful manner and so long
as a citizen of India does so, no restriction can be imposed on the basis of
instructions contained in the Flag Code.
c Before we proceed further it may be remembered that from time
immemorial, people have laid down their lives with a view to salute their
own Flag. What is so compelling in the piece of cloth called the National
Flag, that people make even the supreme sacrifice for its sake? National Flag
indisputably stands for the whole nation, its ideals, aspirations, its hopes and
D achievements.

"A National Flag" as pointed by Lt. Cdr. K.Y. Singh in his book 'Our ,.
National Flag' is the most solemn symbol of a country. Be it a Head of the
State, King or peasant, salutes it. A piece of cloth called the National Flag
stands for the whole nation, its honour and glory. When it goes up the flag
E mast, "the heait of a true citizen is tilled with pride." In his foreword to this
very book, Mr. R. Yenkataraman, former President of India, referred to the
struggle for independence and said as under :

"Our flag, therefore, is both a benediction and beckoning. It contains
the blessings of all those great souls who brought us to freedom. But
F 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."
G
When the draft of Indian Constitution was being debated, the Constituent
Assembly realized the importance of the National Flag. An ad hoc committee
· therefor was constituted headed by Dr. Rajendra Prasad to design the Flag for
free India. Other members of the Committee were Abul Ka lam Azad, K.M.
Panikar, Sarojini Naidu, C. Rajagopalachari, K.M. Munshi and Dr. B.R.
H Ambedkar. The Flag Committee having been constituted held several meetings
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE. Cl.) 1047
and studied the question in depth. It arrived at the following decision : A
"(a) The tlag of the Indian National Congress should be adopted as the
National Flag of India with suitable modifications, to make it
acceptable to all parties and communitie~ in India.
(b) The tlag should be tricoloured, with three bands horizontally B
arranged.
(c) The colours should be in the following order: saffron on top,
white in the middle and dark green at the bottom.
(d) The emblem of the flag should be an exact reproduction of the
wheel on the capital of Moka's Sarnath Pillar, superimposed in C
the middle of the central white band.
(e) The colour of the emblem should be dark blue."

A motion was moved by Pandit Jawahar Lal Nehru in the Constituent
Assembly of India on 22nd July 1947 for the adoption of the National Flag. D
The responses to this motion are extremely significant and serve as apt
retlections of the importance of the Indian Flag to the Indian people. as a
whole. The Flag played an extremely vital role in India's struggle for freedom
and its adoption was one of the indications of the culmination of that struggle.
However, in the light of the present society, it is something that is much more
than a mere symbol of freedom. E
As said by Pandit Jawahar Lal Nehru, the flag is, "a flag of freedom
not for ourselves, but a symbol of freedom to all people who may seek it."
(See Constituent Assembly Debates, 22nd July 1947, p. 766) It was not to be
the flag of the rich or wealthy, but it is to be the Flag of the depressed,
oppressed and submerged classes all over the country. (See the views of Shri F
V.I. Muniswami Pillai, in Constituent Assembly Debates, 22nd July 1947,
p.771). This flag was to be the flag of the Nation, not the flag of any particular
community, but the Flag of all Indians. As declared by Shri Frank Anthony,
"while this is a symbol of our past, it inspires us for th.e future. This flag flies
today as the flag of the nation, and it should be the duty and privilege of G
every Indian not only to cherish and live under it, but if necessary, to die for

'' ).
it." (See Constituent Assembly Debates, 22nd July 1947, p. 780)

The significance of the National Flag was aptly portrayed by Pandit
Govind Malaviya who said, "The importance of a National Flag does not
depend on its colour, its bands or its other parts. The flag as a whole, is H
>

1048 SUPREME COURT REPORTS (2004] l S.C.R.

A important and other things- the colours etc, that it contains·· are immaterial. >- \
The flag may be of a piece of white cloth or of any other insignificant
material but when it is accepted as a National Flag, it becomes the emblem
of national self-respect. It becomes an expression of the sense of freedom of
a nation."

B The resolution which was adopted as under :

"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
c •
Wheel (Chakra) which appears on the abacus of the Sarnatl1 Lion
Capital of Asoka."

National Flags are intended to project the identity of the country they
represent and foster national spirit. Their distinctive designs and colours
D embody each nation's particular character and proclaim the coµntry's separate
existence. Thus it is veritably common to all nations that a national flag has
a great amount of significance. In order that the respect and dignity of the
flag be fostered and maintained, several countries have laid down rules relating
to the use, display, etc. of the flag, along with rules to provide against the
burning, mutilatio~ and destruction of the flag. At this stage we would like
E to deal with the question a> to how flying of national flag is understood by
other countries. The question at hand relates to how many countries allow the
free use of the national flag by the citizens. In stark contrast to the role the
flag has played in the freedom struggles, in several countries, the usage of the
flag has become a virtual sole prerogative of the government.

F RESTRICTIONS ON THE USE OF FLAG IN DIFFERENT COUNTRIES :
S.No. Name of the country Whether free use of
National Flag is allowed to
an individual

G I. Australia Yes
2. Brazil Yes
( '· .
3. Canada Yes
4. China Yes, even on certain
H occasions and places
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.) 1049
}
.).,,
5. Egypt No A
6. Germany No
7. Indonesia No
s: Italy No
9. Japan No B
IO. Malaysia Yes

, >.
11. Mexico No
12. Miramar No
13. New Zealand Yes
c
14. Pakistan No
15. Sri Lanka No
16. Sweden No
D
17. Trinidad & Tobago No
18. United Kingdom ·No
Countries like Canada and Brazil allow free use of the flag by
individuals, with the only rider being· that the flag is treated with dignity and
respect and flown and displayed properly. In the US Flag Code, free use by E
citizens is not specifically defined. The US Flag Code advocates the flying
of the flag with dignity and prohibits mutilation or defilement in public and
its use as costumes, athletic uniforms, cushions, handkerchiefs, etc. While
stating that the flag should be flown on all days, it specifies certain days on
which the flag should be flown specially. In the United Kingdom, the flying
F
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 G
along with the flag of the other person's country, the ... specifications about
size, etc. are to be followed."(Se.e National Flag of Japan [Basic Rules for
)'
Hoisting]) Among India's neighbours, Pakistan allows free display of the
National Flag on specified days only as may be noiified by the government.
Similarly, Sri Lanka also permits display of the National Flag on days of
H
>

1050 SUPREME COURT REPORTS [2004) I S.C.R.

A national importance only. (See the Report of the National Flag Committee,
April 2001, pp. 14-15)

Elsewhere among the Cominonwealth nations, in Australia the rules for
flying the national flag only relate to flying the flag with dignity. In fact, it
is mentioned that the government hopes that all Australians will honour and
B fly it with the pride befitting a national symbol. Similarly, it will be noticed
that even in New Zealand, there are no special days prescribed on which only
individuals can fly the flag. In fact it is specifically stated that the New
Zealand Flag may be flown on any day of the year. The rules are meant to
serve as guides to simplify flag flying and lay down the correct way to
C display the national flag. In fact in New Zealand the flag can be used for
advertising and commercial use also, provided that a faithful representation
should always be achieved with the flag being reproduced in its true colours.
In China, the Flag can be displayed even on New Year's Day, Spring Festival
and in public places such as squares and parks. Further, even in Malaysia,
there is no restriction on the flying of the flag. The Flag can be put on cars
D and even on the inside of cars and flags are almost all over the place. The
Malaysians use stickers with the National Flag and inscriptions 'proud to be
Malaysian.'

The proceedings of this Court show that the appellant herein with a
view to resolve the controversy took several adjournments in the matter.
E Ultimately a committee was constituted by the appellant on or about
18.10.2000 submitted its repo1t in April 2001 upon obtaining the views of the
State Governments and the Union Territory Administrations as regard the
questions :

(a) Whether there is need to liberalize the use of the National Flag.
F 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
G 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
H
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.] 1051
consideration the history and genesis of the Flag and inler a/ia noticed : A
"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 B
showing to its people the path when their very existence is threatened.
It is at this time of danger that this much length of cloth inspires
people to unite under its umbrella and urge them to defend the honour
of their motherland."

The recommendations made by the said Committee was placed before C
the Cabinet whereafter the Flag Code of India 2002 was issued which came
into force with effect from 26.1.2002.

The said Flag Code has been divided into three parts. Part I of the Code
contains the description of the National Flag. Part II provides for the mode D
and manner of hoisting/display/use of National Flag by members of the public,
private organizations, educational institutions etc. Part Ill of the Code relates
to hoisting/display of the National Flag by the Central and State Governments
and their organizations and agencies. From Clause 2.1 of Section I appearing
in Part II of the National Flag, it is now clear that there shall be no restriction
on the display of the National Flag by members of general public, private E
organizations, educational institutions etc. except to the extent provided in
the 1950 Act and 1971 Act and any other law enacted on the subject. Having
regard to the aforementioned statutes, as regards flying of the National Flag,
regulations which are 13 in number have been laid down in the Flag Code,
one of them being :
F
"(i) the Flag shall not be used for commercial purposes in violation
of the emblem and Names (Prevention of Improper U~e) Act,
I 950;"

Section I of Part Ill provides for defence installations/Heads of Missions/
Posts whereas Section 11 provides for official display. Section II of Part II G
provides for as to how the National Flag may be hoisted in educational
)
institutions. Sectior. Ill of Part Ill lays down the manner in which correct
display of the National Flag should be made and in contrast thereto Section
IV provides for incorrect display. Section V provides as to ho>V misuse of the
National Flag should be prevented. Section VI provides for salute of the Flag. H
1052 SUPREME COURT REPORTS [2004] 1 S.C.R.

A Section VII provides that display with flags of other Nations and of United
Nations.

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.
B
It can therefore be stated that some countries like Brazil, Canada allow
for the unrestricted use of the Flag by individuals. On the other side of the
spectrum, countries like the UK hold their flag so sacrosanct that individuals
are not permitted to use and display the flag. Other countries all try to strike ..... ~

a balance between the two extremes, based on the cherish1:d values of their
c 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.
D
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
E the Flag is not used indiscriminately. Moreover, a more liberal use of the
National Flag would require greater civic awareness on the pa11 of the citizens.
A sudden swing to a liberal approach in the matter may create problems,
pa11icularly in the matter of ensuring that the correct usag;es regarding the
National Flag are observed by the citizens at large. Unrestricted use of the
National Flag may result in commercial exploitation of the Flag. It may be
F
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.
G
Ho"'.ever, on the other hand, there is another set of people who ardently
believe that there exists strong reasons to liberalise the use of National Flag
for a number of reasons, some of them being: - 1
f

• Due to the various restrictions imposed on the use and display of
H the National Flag, an impression has developed among people as
U.0.1. v. NA VEEN JINDAL [V.N. KHARE. CJ.] 1053

• >A
if the national Flag is meant for Government use only and the A
peuple at large are permitted unrestricted display of National Flag
only on certain limited occasions. This has probably created a
feeling of dissatisfaction among certain sections of people of India.
• With the electronic media and satellite communication becoming
popular, it is very difficult to ensure that public display of the B
National Flag is avoided. For instance, in various international
sports or cultural events, people identify themselves with their
country by displacing the National Flag. It is an expression of
> pride. It is an expression of genuine enthusiasm. If the restrictions
imposed on the use of the National Flag are implemented
scrupulously, it would amount to discouraging the Indian citizens
c
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
D
impose any restriction, which distances people from the National
Flag.

Thus, there exist two very strong views of thought on whether there
should be free and unrestricted use of the flag allowed to citizens. The stand
E
taken by other countries definitely has a bearing on the course India has
taken so far and the course to. be adopted in the future. It can be seen from
the history, reflected very aptly from the discussions in the Constituent
Assembly that the flag is definitely one of the most revered objects in our
society. 1t must certainly be treated with the utmost respect and dignity. This
might not be possible without imposing any restrictions on its use. But one F
can see from the global scenario, that the major trend is to protect the flag
against mutilation, destruction, etc. and not to prevent irllfividuals from having
any access to the flag, making its use a virtual exclusive privilege of the
government. Since all Indians fought for freedom, it can never be the intention
to deny them use of their National Flag-a symbol of their freedom in entirety. G
Thus, one can conclude that the basic intention is to provide against the
destruction, mutilation, etc. of the Flag and to provide certain basic level
rules for when and how it should be compulsorily used. Though not expressly
> stated, it must therefore give a right of usage to the citizens, other than on
the specific occasions specified.
H
1054 SUPREME COURT REPORTS [2004] I S.C.R.

A Then "the question arises, which view is to be accepted. National anthem,
National Flag and National Song are secular symbols of the nationhood.
They represent the supreme collective expression of commitment and loyalty
to the nation as well as patriotism for the country. They are necessary adjunct
of sovereignty being symbols and actions associated therewith. Can an Indian
B citizen having regard to the law prevailing in other countries fly an Indian
flag therein or whether a foreigner can fly his flag in India. If the answer to
the question is to be rendered in the negative, a startling result will follow
therefrom inasmuch an Indian citizen traveling abroad will be entitled to fly
the National Flag but not in India whereas a foreigner would be entitled to
do so within the territory of India. The beauty of the Indian Constitution is
C that the entire structure of the country is based thereupon. It is the very pillar
upon which the democracy of India stands. The unity and integrity of India
if to be perceived in diverse situation, the feeling of loyalty, commitment a11d
patriotism can be judged not only by giving effect to the conslitutionalism
but also on their secular symbol unhidden as noticed hereinbefore. The question
of this nature has to be considered not from the answer as to whether their
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.
E
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
F 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
I 3(3)(a) of the Constitution of India reads thus :
G
"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
H executive instructions would not fall within the aforementioned category.
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.] 1055.
}
).
Such executive instructions may have the force of law for some other purposes; A
as for example those instructions which are issued as a supplement to the
legislative power in terms of clause (I) 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 B
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 I9 of the Constitution of India; as for the
purpose of regulating the exercise of right of freedom guaranteed under C
Article 19(l)(a) to (e) and (g) a law must be made.

In Kharak Singh v. State of UP., AIR (I 963) 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 D
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 I9 in order to
regulate or curtail fundamental rights guaranteed by the several sub- E
clauses of Article 19( I), 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 F
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 Anr. v. Thakur Bharat Singh, AIR (1967) SC 1170 and Bijoe,
Emmanuel and Ors. v. State of Kera/a and Ors., (.J986] 3 SCC 619.
G
In S.C. Advocates-on-Record Assn. v. 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 wi II of the legislature-declared in the statutes- H
1056 SUPREME COURT REPORTS [2004] I S.C.R.

A stands in opposition to that of the people-declared in" the constitution-
the will of the people must prevail."

'.: In Punit Rai v. Dinesh Chaudhary, [2003) 8 SCC 204, this Court held
that a cir<;ular letter as regard determination of caste of a child born from .a
non-Scheduled Caste Hindu father and a Scheduled Caste mother shall not
B have the force of the statute, stating : ,

"The said circular letter has not been issued by the State in exercise
of its power under A11icle 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
c Constitution of Jndia. 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.

D Now we come to the core question, whether flying of the National Flag
is a fundamental right?

Part Ill of the Constitution of India provides for fundamental rights. By
reason of A11icle 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
E freedom of speecn 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 (I) shall affect the operation
of any existing law, or prevent the State from making any law, in so
F 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."

G 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 Ill 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
H Part Ill of the Constitution, such as Articles 14 and 19 of the Constitution of
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.] 1057
; )
India. A
With a yiew 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 B
expression would come within the purview of Article 19(1} (a) of the
Constitution.

In Victor Chandler International v. Customs and Excise Commissioners
and Anr., [2000) 2 All ER 315 at p. 322, it was stated :
c
"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:
D
'(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 t.he 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 E
way whatever changes might occur after its passing. Updating
construction is not therefpre applied to it.

28. These principles received the endorsement of the Court of Appeal
in R. v. Wes/minister City Council, exp A (1997) 9 Admin LR 504
at 509, where Lord Woolf MR described the National Assistance Act p
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
G
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 H
1058 SUPREME COURT REPORTS [2004) I S.C.R.

A 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 ~he Constitution of
India.
B
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
c 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'.
D
We may note some case law from Australia, in this connection :

In levy v. State of Vic/aria and Lange v. Australian Broadcasling
Corporation, Anne Twomey, Sydney Law Review, Vol 1No1, March 1997,
it was stated :
E
"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 ofrepresentative gov1:mment which
F 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. Wes/
Australian Newspapers ltd to constrain State defamation laws, both
statute and common law. In 1996, however, the High Court has been
G more restrained in its interpretation of the extent of the i1nplication
and in the development of further implications which rest upon the
constitutional system of representative government." i
-'(

In The State ofPlay in the Constitutionally Implied Freedom of Political
Discussion and Bans on Electoral Canvassing in Australia, George Williams,
H Parliamentary Library Law and Bills Digest Group Research Pap.::r 10, 1997,
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.] 1059
t
J. it was· observed : A
"Despite judicial moves to strengthen protection for political discussion
in Australia, there have been countervailing political moves to restrict
certain forms pf 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 B
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 Ptv
Ltd v. Commonwealth (the Political Broadcasts case) and Nationwide News
Pty ltd v. Wills (the Nationwide News case) mark a significant new c
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,
D
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."
E
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."
.>
F
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 G
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.
H
1060 SUPREME COURT REPORTS [2004] 1 S.C.R.

A Freedom of expression promotes ce11ain values, as noted by Professor Emerson
in 1963: "Maintenance of a system of free expression is necessary (I) 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
B 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.

C The Canadian approach to freedom of expression allows for a wide
conception of"expression" withins. 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] I
SCR 927. Thus, in Irwin Toy, Chief Justice Dickson explained that
D "'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
Canada v. R.C.U., (1984] l SCR 269 [p. 377] text, "all freedoms guaranteed
E 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
F methods the press may choose to adopt. The press does not, for example,
enjoy immunity if they run a pedestrian down in pursuit ofa 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
G 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 Ors. v. Union of India
(l 980J 2 sec 768].
H Decisions are. many where this Court read various rights in Article 21
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, C.1.) 1061
} of the Constitution of India. A
+
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 fundament11I 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 B
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 Anr etc. v. Union of
India and Anr., [2003] 4 SCC 399 at page 403, this Court held:
c
" ... 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".
D

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
v. Union of India, [ 1978) I SCC 248). Disturbance to ecological balance has
been held to be hazardous to life within the meaning of Article 21 of the
E
Constitution of India [See M. C. Mehta v. 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 v. State of Tamil Nadu, AIR (1974)
SC 555 followed in Maneka Gandhi v. Union of India, AIR (1978) SC 597 F
> at para 56, R.D. Shelli v. International Airport Alllhority of India AIR (1979)
SC 1628, Ajay Hasia v. Khalid Mujib, AIR (1981) SC 487 and Neelima
Misra v. Harinder Kaur, [1990) 2 SCC 746.

' So far as right of speech and expression is concerned, vis-a-vis censor
and other regulations thereof, this Court in Kameshwar Prasad v. Stale of G
Bihar, AIR (1962) SC 1166 observed :

) "Without going very much into the niceties of language it might be
broadly stated that a 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 H
1062 SUPREME COURT REPORTS [2004] I S.C.R.

A conveyed. It is in effect therefore a form of speech or of expressiOn,
because speech need not be voc1,1l since signs made by a dumb person
would also be a form of speech."

In L.J.C. v. Prof~sor Manubhai D. Shah, (1992] 3 SCC 637, it was
observed :
B
"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
c freedom to hold opinions withoutinterference 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
D 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
E 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
F 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
G 230) 1,1nd 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
H
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.) 1063
~
.J
has to serve the needs of an ever-changing society. A
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 fundamentl)l rights in Part Ill of the
Constitution since they represent the basic values which the people of
India cherished when they gave unto themselves the Constitution for B
free India. That was with a view to ensuring that their 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
c
the fonn 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 D
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 E
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
F
electronic media subject of course to pennissible 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 G
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. H
1064 SUPREME COURT REPORTS [2004) 1 S.C.R.

A In Secretary, Ministry of Information and Broadcasting v. Cricket .\ •
Association of Bengal and Ors., [ 1995] 2 SCC I 61, it was observed :

"The freedom of speech and expression includes right to acquire
information and to disseminate it. Freedom of speech and expre.ssion
is necessary, for self-expression which is an important means of free
B conscience and self-fui'filment. 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."
c
"45. The burden is on the authority to justify the restrictions. Public
order is not the same thing as 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
D
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
E 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 v. Union of India and Ors., [1985] I ,,._
sec 641, the law is stated in the following terms :
F "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
G 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 ~
shou Id, therefore, receive a generous support from all those who
believe in the participation of people in the administration."
H
U.0.l. v. NA VEEN JINDAL [ V.N. KHARE, CJ.] 1065
,,4
...' Thus, the burden of import duty imposed on newsprint was held to be A
a restriction protected by Article 19(1)(a) of the Constitution of India.

In Tata Press Ltd. v. MTNL and Ors., [1995] 5 SCC 139, it was observed:
i. "In a democrati~ economy free flow of commercial information
is indispensable. There cannot be honest and economical marketing B
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 C
and expression guaranteed under Article 19(1 )(a) of the Constitution of India.

In Bennell Coleman & Co. v. Union of India and Ors., [1972] 2 SCC
788 it was held :

"80. The faith of a citizen is that political wisdom and virtue will D
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 pr~ss remains an
"Art of the Covenant" in every democracy. Steel will yield products
of steel." E
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, F
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 def.;:nd to the death your right to say it". Champions
of human freedom of thought and expression, throughout the ages, G
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 v. Union of India, [1994] 5 SCC 550,
this court held : H
1066 SUPREME COURT REPORTS [2004] l S.C.R.

A 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 .•
B 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 frei:dom of thought and expression-the only limitation being
a law in tenns of clause (2) of Article 19 of the Constitution. Thought
control is alien to our constitutional scheme. To the same effect are
C the observations of Robert Jackson, J. in American Communicalions
AssociaJion 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

D
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 Ors v. State of U.P. and Anr., .[2003] I SCC
E 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. v. Union of India, AIR (1962) SC 305, Tata Press ltd.,
(supra) and Benne/I Coleman, (supra), it was held :
F "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.profit to the shareholders vis-a-vis.making the newspapers
G 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."

Th is 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
H journalists.
U.0.1. v. NA VEEN JINDAL [ V.N. KliARE, CJ.) 1067
In this connection, it is useful to note the first amenament of the A
. 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, B
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. C
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 D
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 E
tolerates and protects."

In Texas v. Johnson, I05 L Ed 2d 345 at 345 it was held :

"But whether or not he could appreciate the enonnity of the offence
he gave, the fact remains that his acts were speech, in both the technical F
and the fundamental meaning of the Constitution. So I agree with the
Court that he must go free."

In US v. Shawn D. Eichman, I IO L Ed 2d 287, it was held :

"Government may create national symbols, promote them, and G
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 : H
1068 SUPREME COURT REPORTS (2004] I S.C.R.

A "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
B 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 confess by word or act their faith therein. If there are any
circumstances which permit an exception, they do not now occur to
us."
c 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( I )(a) does not confer
such an absolute right of free speech and expression. It only provides for a
D 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 1~xpression is confined to nationalism, patriotism and love for
r
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.
E
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 purp_ose of giving
F 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.
G
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 Ill of the Constitution of India
although confers rights, duties and regulations are inherent thereunder. Such
H reasonable regulations have been found to be contained in the provisions of
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.] 1069
Part 111 of the Constitution of India, apart from clauses 2 to 4 and 6 of Article A
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." B
The question as to whether Article 51-A is not justiciable or enforceable
thus takes a backseat. In Indian Handicraft Emporium and Ors v. Union of
India and Ors., JT (2003) 7 SC 446, it was held :

"The provisions of the statute are also required to be considered C
keeping in view Article 48-A and Article 51 A(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 D
the country."

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

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

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 F
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 51 A requires every G
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 H
1070 SUPREME COURT REPORTS [2004] I S.C.R.

A and lhe 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
B be accepted in India as it would amount to disrespect of the National Flag.
This Court in S. Rangarajan etc. v. P. Jagjivan Ram and Ors., (1989]
2 sec 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
c Award. We want to put the anguished question, what good is the
protection of freedom of expression if the State does r.ot 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
D 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."
E
In Ranganath Misra v. Union of India and Ors., (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 :

F "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
G 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
H
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE. CJ.] 1071
not merely for legal sanctions but also combining it with social A
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 11orms to
attract social approbation would make the citizens willing participants
in the exercise. The real task, therefore, is to devise methods which B
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 C
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." D
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 E
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. F

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 v. S.H.O.
Kodad (PS) Nalgonda and Ors., (2001) 2 ALT 141, wherein considering a G
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 H
1072 SUPREME COURT REPORTS [2004] 1 S.C.R.

A construed in the context of Article 51-A of the Constitution of India.

I0. The provisions of the aforementioned Acts a.nd 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
B 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.
c 12. They evidently have failed to perform their statutory duties.

13. Having regard to the fact that it has been stated in the letter dated
15.12.2000 that the writer thereof is not aware of the name(s) of the
person(s) manufacturing the same, we direct the State and in.particular
D 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
E 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.

F 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
G right but a qualified one being subject to reasonable restrictions under clause
2 of Article I 9 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
H would not restrictively regulate the free exercise llf the right of flying the

' I
U.0.1. v. NA VEEN JINDAL [ V.N. KHARE, CJ.] 1073
national flag. However, the Flag Code to the extent it provides for preservi1ig A
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-a-vis, the regulatory measures/restrictions, both Parts IV and !VA
of the Constitution of India can be taken recourse to.
B
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.

N.J. Appeals dismissed.