Decided on January 23,2004



V.N.Khare, C.J.I. - (1.) LEAVE granted in the S.L.P.
(2.) IN those 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. Naveen Jindal, the respondent herein, is a Joint Managing Director of a public limited company incorporated under the Companies Act. He being in charge 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. 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 the 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.
(3.) 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 constitutional 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 ought not to interfere with the same." The High Court after hearing the matter held : (1) The Question as to whether the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 (hereinafter referred to as 'the 1950 Act', for the sake of brevity) have been violated or not is a matter which would fall for determination of the court of law and not by the executive; (2) The restrictions imposed by the Flag Code on flying the National Flag being not law within the meaning clause (2) of Article 19 of the Constitution of India, the same cannot be construed to be a penal provision; (3) However, if contravention of any of those instructions and guidelines had been issued under the 1950 Act or under the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as 'the 1971 Act'), the same would constitute a penal offence; (4) Referring to the debates held in the Constituent Assembly as also a passage from the book titled 'Our National Flag' by K.V. Singh, the High Court observed that the citizens were required to be educated by issue of Flag Code and the National Flag must be flown in respectful manner and so long as a citizen of India does so, no restriction can be imposed on the basis of instructions contained n the Flag Code.;

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