Critical Appraisal of Decision

Pandit Jawahar Lal Nehru had said in the constituent assembly, "A flag of freedom not for
ourselves, but a symbol of freedom to all people who may seek it." 42 However, the question
is, how much freedom do we have regarding the National Flag
Article 19 of the Indian Constitution protects both verbal as well as non-verbal speech. The
Supreme Court in Kameshwar Prasad v. State of Bihar has laid that "speech need not be vocal
since signs made by a dumb person would also be a form of speech."43 Further, Article 51A
(a) of the Indian Constitution says that it is a fundamental duty to respect the National Flag. 4
Therefore, will 'wearing of national flag' come under the ambit of freedom of expressing
one's love towards the National flag or not is a question worth pondering. In fact, the
foregoing argument was made by Mr. Naveen Jindal, which led to the passage of The
Prevention of Insults to National Honour (Amendment) Act, 2005.
The display and usage of National Flag in India are governed by Flag Code of India, 2002
and The Prevention of Insults to National Honour Act, 1971. The 1971 enactment makes
several actions like burning, mutilation, disfiguration, or showing disrespect towards the Flag
in any manner punishable up to three years and with fine or with both. Interestingly, it does
not include clothing.
In the case of Union of India v Naveen Jindal the Supreme Court thoroughly discussed the
National flag. The case was regarding the flying of the national flag on private buildings,
which the government contended, was not allowed under The Flag Code, 2002. The court
while discussing the matter said
"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. "45
The Court interpreted that the National flag can be flown with regards to Article 51-A making
the right to fly the flag a qualified right and not an absolute one. The court held
'Right to fly the national flag' a right under Article 19(1)(a). The court enunciated,
"Flag Code is not a statute; thereby the Fundamental Right under Article 19(1) (a) is not
regulated. But the guidelines as laid down under the Flag Code deserve to be followed to the
extent it provides for preservation of dignity and respect for the national flag. The right to fly
the National Flag is not an absolute right. The freedom of expression for the purpose of
giving a feeling of nationalism and for that purpose all that is required to be done is that the
duty to respect the flag must be strictly obeyed. The pride of a person involved in flying the
Flag is the pride to be an Indian and that, thus, in all respects to it must be shown. The state
may not tolerate even the slightest disrespect"
Although interpretation of the Constitution of India is primarily must be based on the
materials available in India, relevant rules of the other countries have been enumerated
hereinbefore for our guidance.
It can therefore be stated that some countries like Brazil, Canada allow for the unrestricted
use of the Flag by individuals. On the other side of the spectrum, countries like the UK hold
their flag so sacrosanct that individuals are not permitted to use and display the flag. Other
countries all try to strike a balance between the two extremes, based on the cherished values
of their country, the history behind the evolution of the flag in their country, etc. Thus, in
order to discern whether an individual has a right to display the flag in India, one will have to
discern what are the advantages and disadvantages of free use and balance that with the vital
role played by the flag in India's freedom struggle. 46
Thus, there exist two very strong views of thought on whether there should be free and
unrestricted use of the flag allowed to citizens. The stand taken by other countries definitely
has a bearing on the course India has taken so far and the course to be adopted in the future. It
can be seen from the history, reflected very aptly from the discussions in the Constituent
Assembly that the flag is definitely one of the most revered objects in our society. It must
certainly be treated with the utmost respect and dignity. This might not be possible without
imposing any restrictions on its use. But one can see from the global scenario, that the major
trend is to protect the flag against mutilation, destruction, etc. and not to prevent individuals
from having any access to the flag, making its use a virtual exclusive privilege of the
government. Since all Indians fought for freedom, it can never be the intention to deny them
use of their National Flag - a symbol of their freedom in entirety. Thus, one can conclude that
the basic intention is to provide against the destruction, mutilation, etc. of the Flag and to
provide certain basic level rules for when and how it should be compulsorily used. Though
not expressly stated, it must therefore give a right of usage to the citizens, other than on the
specific occasions specified.
Then the question arises, which view is to be accepted. National anthem, National Flag and
National Song are secular symbols of the nationhood. They represent the supreme collective
expression of commitment and loyalty to the nation as well as patriotism for the country.
They are necessary adjunct of sovereignty being symbols and actions associated therewith.
Can an Indian citizen having regard to the law prevailing in other countries fly an Indian flag
therein or whether a foreigner can fly his flag in India. If the answer to the question is to be
rendered in the negative, a startling result will follow therefrom inasmuch an Indian citizen
traveling abroad will be entitled to fly the National Flag but not in India whereas a foreigner
would be entitled to do so within the territory of India. The beauty of the Indian Constitution
is that the entire structure of the country is based thereupon. It is the very pillar upon which
the democracy of India stands. The unity and integrity of India if to be perceived in diverse
situation, the feeling of loyalty, commitment and patriotism can be judged not only by giving
effect to the constitutionalism but also on their secular symbol unhidden as noticed
hereinbefore. The question of this nature has to be considered not from the answer as to
whether their exists an express provision on the basis whereof a right to fly the National Flag
can be rested or whether there is anything in the Constitution prohibiting or denying the
exercise of such a right. If flying of a National Flag is considered in absence of any denial
thereof either in the Constitution or in any other statute book, it may be held to be a part of
the fundamental right. CONCLUSION AND SUGGESTIONS
It can be easily concluded that right to freedom of speech and expression is one of the most
important fundamental rights. It includes circulating one's views by words or in writing or
through audio-visual instrumentality, advertisements or through any other communication
channel. It also comprises of right to information, freedom of press etc. Thus, this
fundamental right has a vast scope. From the above case law analysis, it is evident that the
Court has always placed a broad interpretation on the value and contents of Article 19(1)(a),
making it subjective only to the restrictions permissible under Article 19(2). Efforts by
intolerant authorities to curb or choke this freedom have always been firmly repelled, more so
when public authorities have betrayed tyrannical tendencies.
The lines between nationalism and patriotism have been blurred in India over the period.
George Orwell said in his essay 'Notes on Nationalism',
"Nationalism is not to be confused with patriotism... By "patriotism' I mean devotion to a
particular place and a particular way of life, which one believes to be the best in the world but
has no wish to force on other people. Patriotism is of its nature defensive, both militarily and
culturally. Nationalism, on the other hand, is inseparable from the desire for power." He
categorically said that "misplaced patriotic pride" can act as a barrier to progressive schemes
and "Nationalism does not necessarily mean loyalty to a government or a country, still less to
one's own country."
From this it can be easily concluded that right to freedom of speech and expression is one of
the most important fundamental right. It includes circulating one's views by words or in
writing or through audio visual instrumentalities, through advertisements and through any
other communication channel. It also comprises of right to information, freedom of press etc.
Thus this fundamental right has a vast scope.
From the above case law analysis it is evident that the Court has always placed a broad
interpretation on the value and content of Article 19(1)(a), making it subjective only to the
restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or
suffocate this freedom have always been firmly repelled, more so when public authorities
have betrayed autocratic tendencies.
It can also be comprehended that public order holds a lot of significance as a ground of
restriction on this fundamental right. But there should be reasonable and proper nexus or
relationship between the restriction and achievement of public order. The words "in the
interest of public order' include not only utterances as are directly intended to lead to disorder
but also those that have the tendency to lead to disorder.
Explaining the scope of freedom of speech and expression Supreme Court has said that the
words "freedom of speech and expression" must be broadly constructed to include the
freedom to circulate one's views by words of mouth or in writing or through audiovisual
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 country therefore has the right to air his or their views through the printing and
or the electronic media subject of course to permissible restrictions imposed under Article
19(2) of the Constitution.
Freedom to air one's view is the lifeline of any democratic institution and any attempt to
stifle, suffocate or gag this right would sound a death knell to democracy and would help
usher in autocracy or dictatorship. The modern communication mediums advance public
interest by informing the public of the events and development that have taken place and
thereby educating the voters, a role considered significant for the vivacious functioning of a
democracy. Therefore, in any setup more so in a democratic setup like ours, broadcasting of
news and views for popular consumption is a must and any attempt to deny the same must be
frowned upon unless it falls within the mischief of Article 19(2) of the Constitution.
The various communication channels are great spreaders of news and views and make
considerable impact on the minds of readers and viewers and our known to mould public
opinion on vitals issues of national importance. The freedom of speech and expression
includes freedom of circulation and propagation of ideas and therefore the right extends to the
citizen to use the media to answer the criticism leveled against the views propagated by him.
Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must,
however, be exercised with circumspection and care must be taken not to trench on the rights
of other citizens or to jeopardise public interest.
Flag in one's hearts is what should be given more importance to, and that cannot be judged by
the absence or presence of the flag on his body. It is a way of expression, which cannot and
should not be curbed by anyone.
Freedom of speech and expression is the bulwark of democratic government. This freedom is
essential for the proper functioning of democratic process and is regarded as the first
condition of liberty. It occupies a preferred position in the hierarchy of liberties giving
protection to all other liberties. It has been truly said that it is the mother of all other liberties.