On 23rd January 2004, the Supreme Court of India ruled that citizens of India can fly the National Flag (NF) “respectfully” in observance of the law of the land. The Court pronounced “The right to fly the National Flag (as) a fundamental right”.
It has been only 22 years, in our 78 years of independence, that the fundamental right to respectfully fly the NF has been bestowed on the Indian citizen. Until then, the NF was a government flag. Today, when the government itself has launched the Har Ghar Mein Tiranga campaign, urging the citizens to display their nationalistic spirit through the NF, the day on which the Court pronounced the decision assumes a renewed significance. The Court’s decision has become part of the constitutional psyche of the nation.
The right to fly the NF, which the citizens of India enjoy today, is the result of a prolonged legal battle fought by Naveen Jindal. It has been rightly said that history and jurisprudence progresses on the backs of eccentrics. When the hoisting of the NF in his factory premises at Raigarh, Madhya Pradesh was prohibited by the state, Jindal’s patriotic zeal and enlightened eccentricity led him to approach the Delhi High Court (DHC) seeking constitutional remedies.
Jindal challenged the restrictions imposed on him by the Flag Code of India as a breach of his fundamental right to the freedom of speech and expression under Article 19(1)(a) of the Constitution. He also contended that the Code is a set of executive instructions and not a law; hence he contended that there were no reasonable restrictions on his fundamental rights under Article 19 (2). The government’s contention that the Flag Code of India, being an order issued by the Government as per the Government of India (Allocation of Business) Rules, 1961 framed by the President as per Article 77(3) of Constitution makes it a law, was rejected by the DHC. It upheld Jindal’s right to fly the NF and his actions were found to be not in breach of the law of the land, including the Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971.
The Government appealed against this decision before the Supreme Court (SC), where I argued for Jindal. After extensive deliberations, comparative studies and analyses of diverse precedents, the SC rejected the Government’s contentions and upheld the decision of the DHC.
The SC rightly observed that the “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”. While accepting our argument and recognizing the flying of the NF as a way of self-expressing nationalistic sentiments, the Court thus added the unique dimension of symbolic speech to Article 19(1)(a).
The SC also struck a fine balance between this fundamental right of speech and expression through the NF and the correlative duty to “respect the National Flag” under Article 51(A). The said right must necessarily be exercised with respect and dignity, which includes compliance with the Emblems Act and the National Honour Act.
Although the Flag Code was declared as not being a law (and consequently not a reasonable restriction), the Court subjected the right to fly the Flag as “subject to reasonable restrictions under clause 2 of Article 19 of the Constitution”. This seeming paradox occurred due to a supervening change in circumstances. During my arguments in the SC, the Government constituted a Committee for obtaining the views of state governments on the liberal use of the NF by citizens and the reasonable restrictions which could be placed against such liberal use. Based on the report of the Committee, the Government issued the Flag Code of India 2002, replacing the Flag Code of India, 1950. It was this later Code, which altered the contextual substratum of the case, which the SC treated as reasonable restrictions on the free exercise of this fundamental right. Today, the Flag Code stands as a guide to the citizen to responsibly and respectfully fly the NF.
Jindal’s contribution to this outcome is noteworthy because he showed unwavering faith in the constitutive possibilities of the Constitution and in the judicial means of securing rights. He had the quest for truth—satyagraha—for which he used the peaceful means of citizen-led litigation, combating the untruth of prohibition on the citizens to fly the NF for the truth of rights-based permission. This constitutional truth fortunately prevailed. His persistence, tenacity and personal support to my advocacy enabled an accepted and never questioned status quo to change. Jindal’s NGO, the Flag Foundation of India, has connected millions of citizens to the Flag through various programs and campaigns over the last two decades.
The decision in Union of India v. Naveen Jindal is etched in constitutional memory as testimony to the actualization of citizens’ rights through law. It has also made fundamental rights jurisprudence, especially the right of speech and expression, richer and more impactful. The substantive clarity provided by the decision has been a precedential guide in the evolution of subsequent flag jurisprudence.
The SC decision has also been instrumental in increasing flag literacy in the country. It has, through the NF, reconnected the citizens with their identity, symbolically and symbiotically. It has democratized our NF and memorialized its ethos in our public consciousness. 23rd January marks the 22nd year of that major cultural and emotional shift. It gives every reason to rejoice, remember and reflect, personally, institutionally and nationally.
Disclaimer
Views expressed above are the author’s own.
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