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TMI Blog2004 (1) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian citizens. Flying of National Flag with respect and dignity being a fundamental right, the Flag Code which contains only executive instructions of the Government of India and, thus, being not a law, cannot be considered to have imposed reasonable restrictions in respect thereof within the meaning of clause (2) of Article 19 of the Constitution of India. Before the High Court, the Appellant-Union of India raised the following contentions : "1. That the Central Government is authorised to impose restrictions on the use of National Flag at any public place or building and can regulate the same by the authority vested in it under Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950; 2. That the restriction imposed by the Act and orders issued by the Government are constitutionally valid being reasonable restrictions on the Freedom of Speech and Expression under Article 19(2) of the Constitution. 3. That the question of permitting free use of National Flag or to restrict its use is a matter of policy option available to the Parliament and to the Government. Since it is a policy option constitutionally permissible, the courts ough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision 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. (c) The colours should be in the following order: saffron on top, white in the middle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orizontal tricolour of deep Saffron (Kesari), white and dark green in equal proportion. In the center of the white band, there shall be a wheel of navy blue to represent the Chakra. The design of the wheel shall be that of the Wheel (Chakra) which appears on the abacus of the Sarnath Lion Capital of Asoka." National Flags are intended to project the identity of the country they represent and foster national spirit. Their distinctive designs and colours embody each nation's particular character and proclaim the country's separate existence. Thus it is veritably common to all nations that a national flag has a great amount of significance. In order that the respect and dignity of the flag be fostered and maintained, several countries have laid down rules relating to the use, display, etc. of the flag, along with rules to provide against the burning, mutilation and destruction of the flag. At this stage we would like to deal with the question as to how flying of national flag is understood by other countries. The question at hand relates to how many countries allow the free use of the national flag by the citizens. In stark contrast to the role the flag has played in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment hopes that all Australians will honour and fly it with the pride befitting a national symbol. Similarly, it will be noticed that even in New Zealand, there are no special days prescribed on which only individuals can fly the flag. In fact it is specifically stated that the New Zealand Flag may be flown on any day of the year. The rules are meant to serve as guides to simplify flag flying and lay down the correct way to display the national flag. In fact in New Zealand the flag can be used for advertising and commercial use also, provided that a faithful representation should always be achieved with the flag being reproduced in its true colours. In China, the Flag can be displayed even on New Year's Day, Spring Festival and in public places such as squares and parks. Further, even in Malaysia, there is no restriction on the flying of the flag. The Flag can be put on cars and even on the inside of cars and flags are almost all over the place. The Malaysians use stickers with the National Flag and inscriptions 'proud to be Malaysian.' The proceedings of this Court show that the appellant herein with a view to resolve the controversy took several adjournmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enacted on the subject. Having regard to the aforementioned statutes, as regards flying of the National Flag, regulations which are 13 in number have been laid down in the Flag Code, one of them being : "(i) the Flag shall not be used for commercial purposes in violation of the emblem and Names (Prevention of Improper Use) Act, 1950;" Section I of Part III provides for defence installations/Heads of Missions/Posts whereas Section II provides for official display. Section II of Part II provides for as to how the National Flag may be hoisted in educational institutions. Section III of Part III lays down the manner in which correct display of the National Flag should be made and in contrast thereto Section IV provides for incorrect display. Section V provides as to how misuse of the National Flag should be prevented. Section VI provides for salute of the Flag. Section VII provides that display with flags of other Nations and of United Nations. Although interpretation of the Constitution of India is primarily must be based on the materials available in India, relevant rules of the other countries have been enumerated hereinbefore for our guidance. It can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on certain limited occasions. This has probably created a feeling of dissatisfaction among certain sections of people of India. ? With the electronic media and satellite communication becoming popular, it is very difficult to ensure that public display of the National Flag is avoided. For instance, in various international sports or cultural events, people identify themselves with their country by displacing the National Flag. It is an expression of pride. It is an expression of genuine enthusiasm. If the restrictions imposed on the use of the National Flag are implemented scrupulously, it would amount to discouraging the Indian citizens or Indian nationals from identifying themselves with the Flag of the country. ? The restrictions imposed on the use of the National Flag should be commensurate with the international practices being adopted by various democratic countries and the Government should not impose any restriction, which distances people from the National Flag. Thus, there exist two very strong views of thought on whether there should be free and unrestricted use of the flag allowed to citizens. The stand taken by other countries definitely has a bearing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture has to be considered not from the answer as to whether their exists an express provision on the basis whereof a right to fly the National Flag can be rested or whether there is anything in the Constitution prohibiting or denying the exercise of such a right. If flying of a National Flag is considered in absence of any denial thereof either in the Constitution or in any other statute book, it may be held to be a part of the fundamental right. Before we proceed further, it is necessary to deal with the question, whether Flag Code is "law"? Flag Code concededly contains the executive instructions of the Central Government. It is stated that the Ministry of Home Affairs, which is competent to issue the instructions contained in the Flag Code and all matters relating thereto are one of the items of business allocated to the said Ministry by the President under the Government of India (Allocation of Business) Rules, 1961 framed in terms of Article 77 of the Constitution of India. The question, however, is as to whether the said executive instruction is "law" within the meaning of Article 13 of the Constitution of India. Article 13(3)(a) of the Constitution of India reads thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in State of Madhya Pradesh and Another vs. Thakur Bharat Singh [AIR 1967 SC 1170], Bijoe, Emmanuel and Others vs. State of Kerala and Others [(1986) 3 SCC 619]. In S.C. Advocates-on-Record Assn. vs. Union of India [(1993) 4 SCC 441], it was held : "Constitution is the "will" of the people whereas the statutory laws are the creation of the legislators who are the elected representatives of the people. Where the will of the legislature-declared in the statutes-stands in opposition to that of the people- declared in the constitution-the will of the people must prevail." In Punit Rai vs. Dinesh Chaudhary [(2003) 8 SCC 204], this Court held that a circular letter as regard determination of caste of a child born from a non-Scheduled Caste Hindu father and a Scheduled Caste mother shall not have the force of the statute, stating : "The said circular letter has not been issued by the State in exercise of its power under Article 162 of the Constitution of India. It is not stated therein that the decision has been taken by the Cabinet or any authority authorized in this behalf in terms of Article 166(3) of the Constitution of India. It is trite that a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory construction that an 'ongoing' statutory provision should be treated as 'always speaking'. The principle is set out in Bennion Statutory Interpretation (3rd edn, 1997), p.686: '(2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking....(3) A fixed-time Act is intended to be applied in the same way whatever changes might occur after its passing. Updating construction is not therefore applied to it. 28. These principles received the endorsement of the Court of Appeal in R. vs. Westminister City Council, ex p A (1997) 9 Admin LR 504 at 509, where Lord Woolf MR described the National Assistance Act 1948 as - 'a prime example of an Act which is "always speaking" and so should be construed" on a construction, that continuously updates its wording to allow for changes since the Act was initially framed". Constitution being a living organ, its ongoing interpretation is permissible. The supremacy of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Research Paper 10, 1997, it was observed : "Despite judicial moves to strengthen protection for political discussion in Australia, there have been countervailing political moves to restrict certain forms of political speech. This has frequently been driven by inquiries undertaken by parliamentary committees at both the State and Federal level. ...Does this mean that Australian Parliaments and the High Court are on a collision course over free speech in the electoral process? The answer need not be yes." The decisions of the High Court in Australian Capital Television Pty Ltd v Commonwealth (the Political Broadcasts case) and Nationwide News Pty Ltd v Wills (the Nationwide News case) mark a significant new development in Australian constitutional law, in particular because of the High Court's recognition of the freedom of communication in relation to political matters. Article 5 of the 1988 Brazil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d inclusionary approach to the interpretation of the Charter's free expression guarantee is to be preferred (see Ford v. Quebec 1988 (2) SCR 90, and Irwin Toy v. Quebec (Attorney General) 1989 (1) SCR 927). Thus, in Irwin Toy, Chief Justice Dickson explained that "'expression' has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content." Not only is there a freedom of expression, there is also a freedom not to express. As Justice Beetz said in National Bank of Canada v. R.C.U. 1984 (1) SCR 269 [p. 377 text], "all freedoms guaranteed by s. 2 of the Charter necessarily imply reciprocal rights: ... freedom of expression includes the right to not express." There are of course limits to free speech and free press guarantees, as the Canadian Supreme Court is quite ready to point out (see CBC v. A.G.N.B. 1991 (3) SCR 459). For example, even though the press enjoys core constitutional rights of access and publication, they do not have protection for all operational means and methods the press may choose to adopt. The press does not, for example, enjoy immunity if they run a pedes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Airport Authority of India [AIR 1979 SC 1628], Ajay Hasia vs. Khalid Mujib [AIR 1981 SC 487] and Neelima Misra vs. Harinder Kaur [(1990) 2 SCC 746]. So far as right of speech and expression is concerned, vis-`-vis censor and other regulations thereof, this Court in Kameshwar Prasad vs. State of Bihar [AIR 1962 SC 1166] observed : "Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech." In L.I.C. vs. Professor Manubhai D. Shah, [(1992) 3 SCC 637], it was observed : "5. Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feelings to others. Freedom of speech and expression is thus a natural right which a human being acquires on birth. It is, therefore, a basic human right. Everyone has the right to freedom of opinion an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o leave anything to chance. They, therefore, considered it of importance to protect specific basic human rights by incorporating a Bill of Rights in the Constitution in the form of fundamental rights. These fundamental rights were intended to serve generation after generation. They had to be stated in broad terms leaving scope for expansion by courts. Such an intention must be ascribed to the Constitution-makers since they had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution-makers employed a broad phraseology while drafting the fundamental rights so that they may be able to cater to the needs of a changing society..." 8. The words "freedom of speech and expression" must, therefore, be broadly construed to include the freedom to circulate one's views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this free country, therefore, has the right to air his or her views ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s learned writers have observed, has four broad social purposes to serve : (i) it helps an individual to attain self fulfillment, (ii) it is assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration." Thus, the burden of import duty imposed on newsprint was held to be a restriction protected by Article 19(1)(a) of the Constitution of India. In Tata Press Ltd. vs. MTNL and Others [(1995) 5 SCC 139], it was observed : "In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations of Robert Jackson, J. in American Communications Association v. Douds (339 US 382, 442-43 (1950) : 94 L Ed 925) with reference to the U.S. Constitution : "Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored." In Hindustan Times and Others vs. State of U.P. and Another [(2003) 1 SCC 591], this Court noticed as to how the right of its shareholders to have a free press is a fundamental right keeping in view the fact that the newspapers serve as a medium of exercise of freedom of speech. Referring to Sakal Papers (P) Ltd. vs. Union of India [AIR 1962 SC 305], Tata Press Ltd. (supra) and Bennett Coleman (supra), it was held : "It is neither in doubt nor in dispute that for the purpose of meeting the costs of the newsprint as also for meeting other financial liabilities which would include the liability to pay wages, allowances and gratuity etc to the working journalist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ette, 319 US 624, it has been held : "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." Here it is necessary to notice the distinction between the Constitution of India and that of United States of America and that is that in U.S.A. the first amendment gives an absolute right to a citizen of religion and free expression, but under Constitution of India Article 19(1)(a) does not confer such an absolute right of free speech and expression. It only provides for a qualified right. Such a fundamental right of a citizen of speech and expression is subject to the regulatory measures contained in clause (2) thereof. So long as the expression is confined to nationalism, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 the country. What is destructive of environment, forest and wild life, thus, being contrary to the Directive Principles of the State Policy which is fundamental in the governance of the country must be given its full effect. Similarly, the principles of Chapter IVA must also be given its full effect. Clause (g) of Article 51A requires every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. The amendments have to be carried out keeping in view the aforementioned provisions. The recent amendments made in the Flag Code by the Union of India and the stand taken by the learned Solicitor General that the Central Government is not against the flying of the Flag by an individual is itself indicative of the fact that a liberal construction so far as Article 19(1) (a) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural urge for obedience of the norms to attract social approbation would make the citizens willing participants in the exercise. The real task, therefore, is to devise methods which are a combination of these aspects to ensure a ready acceptance of the programme by the general citizenry and the youth, in particular. The Committee is strongly of the view that the significance of dignity of the individual in all its facets and objective of overall development of the personality of the individual must be emphasized in the curriculum at all the stages of education. This requires consciousness of citizenship values which are a combination of rights and duties, and together give rise to social responsibilities. Methods must be devised to operationalize this concept as a constitutional value in our educational curriculum and in co- curricular activities, in schools and colleges." This Court directed that the recommendations of the said Committee should be considered by the Central Government in the right earnest and to take appropriate steps for the implementation thereof. The right to fly the National Flag is a fundamental right but subject to restrictions. The right is not unfettered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osts." We, however, hope and trust that the Parliament, keeping in view the importance of the question involved in this matter, shall make a suitable enactment for the aforementioned purpose. For the aforesaid reason, we hold that- (i) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1) (a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation; (ii) The fundamental right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under clause 2 of Article 19 of the Constitution of India; (iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of the National Flag; (iv) Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution of India for the purpose of clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying the national flag. However, the Flag Code to the extent it provides for preserving respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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