TMI Blog2004 (1) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... a writ petition before the High Court, inter alia, on the ground that no law could prohibit flying of National Flag by Indian citizens. Flying of National Flag with respect and dignity being a fundamental right, the Flag Code which contains only executive instructions of the Government of India and, thus, being not a law, cannot be considered to have imposed reasonable restrictions in respect thereof within the meaning of clause (2) of Article 19 of the Constitution of India. Before the High Court, the Appellant-Union of India raised the following contentions : 1. That the Central Government is authorised to impose restrictions on the use of National Flag at any public place or building and can regulate the same by the authority vested in it under Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950; 2. That the restriction imposed by the Act and orders issued by the Government are constitutionally valid being reasonable restrictions on the Freedom of Speech and Expression under Article 19(2) of the Constitution. 3. That the question of permitting free use of National Flag or to restrict its use is a matter of policy option available to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs of all those great souls who brought us to freedom. But it also beckons us to fulfill their vision of a just and united India. As we confront crucial challenges to our security, our unity and integrity, we cannot but heed to the call of this flag to rededicate ourselves to the establishment of that peaceful and just order wherein all Indians irrespective of creed, caste or sex will fulfill themselves. When the draft of Indian Constitution was being debated, the Constituent Assembly realized the importance of the National Flag. An ad hoc committee therefor was constituted headed by Dr. Rajendra Prasad to design the Flag for free India. Other members of the Committee were Abul Kalam Azad, K.M. Panikar, Sarojini Naidu, C. Rajagopalachari, K.M. Munshi and Dr. B.R. Ambedkar. The Flag Committee having been constituted held several meetings and studied the question in depth. It arrived at the following decision : (a) The flag of the Indian National Congress should be adopted as the National Flag of India with suitable modifications, to make it acceptable to all parties and communities in India. (b) The flag should be tricoloured, with three bands horizontally arranged. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted as under : Resolved that the National Flag of India shall be a horizontal tricolour of deep Saffron (Kesari), white and dark green in equal proportion. In the center of the white band, there shall be a wheel of navy blue to represent the Chakra. The design of the wheel shall be that of the Wheel (Chakra) which appears on the abacus of the Sarnath Lion Capital of Asoka. National Flags are intended to project the identity of the country they represent and foster national spirit. Their distinctive designs and colours embody each nation's particular character and proclaim the country's separate existence. Thus it is veritably common to all nations that a national flag has a great amount of significance. In order that the respect and dignity of the flag be fostered and maintained, several countries have laid down rules relating to the use, display, etc. of the flag, along with rules to provide against the burning, mutilation and destruction of the flag. At this stage we would like to deal with the question as to how flying of national flag is understood by other countries. The question at hand relates to how many countries allow the free use of the national flag by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Political Discussion and Bans on Electoral Canvassing in Australia, George Williams, Parliamentary Library Law and Bills Digest Group R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all sorts. 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 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 provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 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; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 f ..... 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