Har Ghar Thiranga - How Supreme Court Recognized Citizen's Right To Fly The National Flag

The Indian national flag, with the tricolours of saffron, white and green, and with Asoka Chakra at its centre, embodies national unity. Laws and regulations, namely, the Prevention of Insults to National Honour Act, 1971 and the Flag Code of India, 2002 were framed to govern the dignified representation of the Indian flag. The citizens' duty to respect the ideals of the National Flag was also inserted in the Indian constitution through Article 51A (a). In light of the government's Har Ghar Tiranga campaign, held under the Azadi Ka Amrit Mahotsav programme for the 75th year of independence, this article aims to explore the width of the right of hoisting the national flag and restrictions pertaining to the same.

Hoisting Flag As A Fundamental Right

In 1995, Naveen Jindal, an Indian industrialist, who was flying the National Flag at the office premises of his factory, was prohibited to do so by Government officials on the ground that the same was impermissible under the Flag Code of India. The prohibition was imposed invoking Regulation 13 of the Flag Code which provided that the Indian Flag could not be used for "commercial purposes" as the same was in violation of the emblem and Names (Prevention of Improper Use) Act, 1950. It was argued that Jindal had hoisted the national flag in his factory premises, which amounted to using the flag for commercial purposes. Naveen Jindal approached the Delhi High Court (in the case of Naveen Jindal vs Union Of India) and challenged the restriction contained in the Flag Code, India relating to flying of the National Flag by private citizens and sought to have the same quashed as being illegal and invalid.

Here, the Delhi High Court opined that a person flying the National Flag in a respectful manner could no be prohibited from doing so on the basis of instructions contained in the Flag Code, India when no law of the land was infringed.

"Petitioner wishes to fly the National Flag in a respectful manner and he cannot be prohibited from doing that on the basis of instructions contained in the Flag Code - India when no law of the land is infringed", the High Court held.

Later, the Union appealed to the Supreme Court against the Delhi High Court decision.

In this case (Union of India v. Naveen Jindal), the Supreme Court of India recognised that–

"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."

However, while doing so, the court also opined that the Constitution of India did not confer an absolute right of free speech and expression and the same was subject to reasonable restrictions by law under clause 2 of Article 19(1)(a).

Thus, the court stated that so long as the expression (of flying a flag) 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, however–

"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."

The Court also held that Flag Code is not a law within the meaning of Article 13(3)(a) of the Constitution of India and hence it could not restrict the the free exercise of the right of flying the national flag under Article 19(1)(a). However, the Flag Code to the extent it provides for preserving respect and dignity of the National Flag, the same deserves to be followed.

It was further held that 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;  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.

The conclusions of the Supreme Court in Union of India vs Naveen Jindal :

(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.

Accordingly, there exist restrictions on exercising the fundamental right to hoist a flag. One such restriction has been placed through the Prevention of Insults to National Honour Act, 1971 which regulates the manner in which the National Flag can and cannot be used. Section 2 of the Act makes insulting the National Flag a punishable offence, carrying a sentence of three years, or fine, or both.

What amounts to "insulting the National Flag"?

There have been various controversies regarding the National Flag being insulted or disrespected. Explanation 4 to Section 2 of the Prevention of Insults to National Honour Act, 1971 defines 'disrespect to the Indian National Flag' as a gross affront or indignity offered to the Flag. Thus, as per the Act, using the National Flag as clothing to drape someone/something except in state funerals or armed forces or other para-military funerals, or using it as part of a costume or accessory which is worn below the waist of a person- among other things amount to insulting the national flag.

In the long list of people being accused of disrespecting the flag are notable names such as Sachin Tendulkar, who cut a tri-coloured caked during the 2007 ICC World Cup, Shahrukh Khan who was photographed waving the National flag upside down, Mandira Bedi who was booked under Section 2 of the Prevention of Insults to National Honour Act, as she wore a saree with images of the National Flags of participating countries in 2007 Men's Cricket World Cup telecast and the image of the Indian National Flag was below her waist and near her legs; and British musician Chris Martin who stirred a controversy during a concert in India, when he tucked the Indian National Flag in the back pocket of his jeans.

In this context, recently, in 2021, in the case of State v. D. Senthilkumar, where a complaint was filed against a person for cutting a cake having the National Flag as icing, the Madras High court, while quashing the criminal proceedings against the accused held that–

"Patriotism is not determined by a gross physical act. The intention behind the act will be the true test, and it is possible that sometimes the very act itself manifests the intention behind it…Will they be feeling great pride in belonging to this great nation, or would the pride of India have come down on the mere cutting of a cake during the celebration?"

This is not the first judicial pronouncement establishing that an act allegedly disrespectful of the National flag needs to be intentional for it to amount to a violation of Section 2 of the Prevention of Insults to National Honour Act, 1971. In the case of PV Joseph vs State of Kerala (2015), the Kerala High Court quashed charges against an individual who was accused of failing to lower the National Flag after the prescribed time, since there was no intention to disrespect the Flag. Further, in the case of Kantilal Bhuria vs Sanjay Sarvaria (2011), the Madhya Pradesh High Court quashed a complaint against a Cabinet Minister who sat in a car with a damaged National Flag.

Thus, an act would only amount to disrespecting the national flag if it the person committing the act has an intention of insulting or disrespecting the flag.

Amendments to the Flag Code of India, 2002

The Flag Code of India, 2002 was amended vide Order dated December 30, 2021, permitting National Flags which were machine made, or made of polyester to also be allowed to be hoisted. Before the amendment, such flags were not allowed to be used and the Tricolour could only be made by hand using Khadi material. Further, via its order dated 19th July, 2022, the Ministry of Home Affairs also allowed flags to be flown during day or night. Earlier, the tricolour could be hoisted only between sunrise and sunset.

These amendments have been bought to the code to ensure that no citizen violates the flag code while participating in the 'Har Ghar Tiranga' campaign which comes under the Azadi ka Amrit Mahotsav to mark 75 years of Indian independence, as per which Prime Minister Narendra Modi has urged citizens to fly the National Flag at their homes from August 13-15.

While the amendments have been welcomed by many, including the industrialist Naveen Jindal, the proponents of khadi have been opposing it. Those against these amendments believe that the government's move will sever the association between the national flag, Indian independence movement and khadi and that it would not only dilute the definition of khadi but also undermine the spirit of freedom struggle.

The Karnataka Khadi Gramodyoga Samyukta Sangha at Bengeri in Hubballi, which runs the sole BIS-approved flag making unit wrote to Prime Minister and Home Minister of India regarding the same. The Khadi Sangha also highlighted that the amendments will result in the snatching livelihoods of thousands of poor rural women who are engaged in various stages of khadi cloth production, dying, and stitching the flags

As per the Hindu, they stated that–

"It is not just the flag that will be affected but the whole of khadi sector. The basic tenet of khadi has been attacked…This will be the last nail in the coffin of handmade products and household industries…There is a reason why khaddar cloth was mandated for national flag. While national flag is a symbol of our freedom and sovereignty, the khaddar signifies the spirit of the freedom struggle. It was meant to convey the meaning that we had won the fight against the mighty British Empire using the humble charkha as the weapon."

It is pertinent to note that the Flag Code is not a law according to Article 13(1) of the Indian Constitution and is only an executive instruction by the government, as recognised in the case of Naveen Jindal (supra). The code serves as a set of rules to safeguard the dignity of the Indian National Flag and since it is not a law, anyone who is penalised for breaking it will merely be booked and not held criminally responsible. Criminal responsibility for disrespecting the national flag can only be attracted under statutory laws including the Prevention of Insults to National Symbols Amendment Act, 2003 and the State Emblem of India (Prohibition of Improper Use) Act, 2005.