Case: U.O I Vs. Naveen Jindal

1. 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 is a fundamental right within the meaning of Article 19(1)(a) of the Constitution of India.2. Naveen Jindal, the respondent herein, is a Joint Managing Director of a public limited company incorporated under the Companies Act. He being incharge 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 same is impermissible under the Flag Code of India.3. Questioning the said action, the respondent filed 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.

Court's reasoning:
24. Thus, there exists 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.25. 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 as Indian citizen travelling 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 there 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 statue book, it may be held to be a part of the fundamental right.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, patriotism and love for 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.77. 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.78. 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.79. Every right is coupled with a duty. Part III of the Constitution of India although confers rights, duties and regulations are inherent thereunder. Such reasonable regulations have been found to be contained in the provisions of Part III of the Constitution of India, apart from Clauses 2 to 4 and 6 of Article 19 of the Constitution of India.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 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 be accepted in India as it would amount to disrespect of the National Flag.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.89. 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 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 IVA of the Constitution of India can be taken recourse to.