Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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The Supreme Court of India upheld a judgment affirming that the Indian Constitution and in particular the fundamental right to freedom of expression, protected the right to fly the national flag. Naveen Jindal, a director of a factory, filed a petition after he was told that he was not permitted to fly the national flag according to the Flag Code of India. The Court reasoned that the right to fly the flag can be considered as an expression of an individual’s allegiance and pride for their nation. However, the Court did note that this right can be subject to certain reasonable statutory restrictions.
The petitioner, Naveen Jindal, was the Joint Managing Director of a factory, whose office premises had been flying the national flag of India. Government officials did not permit him to do this, citing the Flag Code of India. Mr. Jindal filed a petition before the High Court arguing that no law could forbid Indian citizens from flying the national flag and, furthermore, the Flag Code of India was only a set of executive instructions from the Government of India and therefore not law.
The High Court allowed the petition and held that the Flag Code of India was not a valid restriction on the right to freedom of expression under Article 19 of the Indian Constitution. The High Court observed that, according to Article 19(2), the only valid limitations on this right were those that were contained in statute. In cases concerning the regulation of the flying of the national flag, such limitations could be found in the Emblems and Names (Prevention of Improper Use) Act 1950 or the Prevention of Insults to National Honour Act 1971.
The Union of India filed an appeal against this decision to the Supreme Court on the basis that whether citizens were free to fly the national flag was a policy decision, and could not be subject to court interference.
Justice Brijesh Kumar and Justice S.B. Sinha constituted the two-judge bench of the Supreme Court (the Court) who dismissed the appeal of the Union of India.
The Court began by commenting on the importance of the national flag of India, noting that it was not only a mere symbol of freedom but also represented and fostered national spirit. The Court noted that several countries, including the United Kingdom, Sri Lanka, Pakistan and Japan, had laid down rules regulating the use and/or display of their national flags. The Court noted that the policy in India had been to restrict the use of its national flag with a view to ensuring that it was not dishonored and that it was shown proper respect. The Court noted that a more liberal approach to the flying of the national flag could result in disrespect, exploitation or indiscriminate use of the flag. However, the Court also noted that only allowing designated individuals and bodies to fly the flag could result in the feeling of dissatisfaction among certain citizens. Furthermore, with the advancement of communications technology, it was becoming very difficult to restrict the public display of the national flag. The Court observed that since all Indians fought for freedom, it could never be the intention that they would be denied the use of the national flag. Accordingly, although not expressly provided anywhere, the Court found that citizens must be given the right to use the national flag subject to limitations preventing its destruction or mutilation.
Before proceeding further, the Court considered the question of whether the Flag Code of India constituted “law” within the meaning of Article 13 of the Constitution, which provided the definition of “law” in the context of fundamental rights. The Court found that the Flag Code of India was merely executive instructions and could not be considered “law”. Consequently, the Flag Code of India could not be used for the basis of a statutory right to fly the national flag in India.
The Court then looked at the core question of whether flying the national flag was a fundamental right under the Constitution. Taking into account the importance of the national flag, the Constituent Assembly Debates on the issue, and rules existing in other countries, the Court found that flying the national flag was a symbol of expression that came within the right to freedom of expression under Article 19(1)(a) of the Constitution.
In reaching this decision, the Court took account of the fact that the Indian Constitution, as well as other constitutions around the world, was a living organ subject to ongoing interpretation. In this context, the Court observed that Article 19 of the Constitution had its meaning extended before; for instance, the Court had recognized that Article 19 protected non-verbal speech (Kameshwar Prasad v. State of Bihar), commercial speech (Tata Press Ltd. v. MTNL), and audio-visual and electronic communication (Life Insurance Corporation of India v. Professor Manubhai D. Shah). In this spirit, the Court held that flying the national flag was “an expression and manifestation of [a citizen’s] allegiance and feelings and sentiments of pride for the nation” protected by Article 19 of the Constitution.
However, the Court noted that the rights protected by Article 19 of the Constitution were not absolute. With this in mind, the Court reasoned that “[s]o 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.” As the Flag Code of India was not a statute, it could not legitimately regulate the right to freedom of expression under Article 19(2) of the Constitution. Nonetheless, the Emblems and Names (Prevention of Improper Use) Act 1950 and the Prevention of Insults to National Honour Act 1971 could regulate the flying of the national flag, as long as their regulations were reasonable under Article 19(2) of the Constitution. The Court indicated that it would jealously protect the honor of the national flag, and that the burning of the flag would not be accepted for it would amount to disrespect.
For these reasons, the Court found no merit in the appeal filed by the Union of India.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression by recognising that flying the national flag amounts to “an expression and manifestation of [an individual’s] allegiance and feelings and sentiments of pride for [their] nation”, and that such an expression is protected by the fundamental right to freedom of expression. Although the judgment does imply that restrictions may be imposed to prevent even the slightest disrespect to the national flag of India, and also recognises that it cannot be used for commercial purposes, the decision represents an important step in liberalising the use and display of the national flag within India.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is by a two-judge bench of the Supreme Court and is, therefore, binding on all lower courts and future decisions of the Supreme Court. It reflects the position of law, unless subsequently overruled by a larger bench of the Supreme Court.
Let us know if you notice errors or if the case analysis needs revision.