Freedom of Expression Through the National Flag

By: Aamna Nabeeha Naqvi


Pandit Jawahar Lal Nehru had said in the constituent assembly, “A flag of freedom not for ourselves, but a symbol of freedom to all people who may seek it.” However, the question is, how much freedom do we have regarding the National Flag.

IS IT LEGAL IN INDIA TO WEAR CLOTHES WITH THE NATIONAL FLAG

Article 19 of the Indian Constitution protects both verbal as well as non-verbal speech. The Supreme Court in Kameshwar Prasad v. State of Bihar has laid that “speech need not be vocal since signs made by a dumb person would also be a form of speech.” Further, Article 51A (a) of the Indian Constitution says that it is a fundamental duty to respect the National Flag. Therefore, will ‘wearing of national flag’ come under the ambit of freedom of expressing one’s love towards the National flag or not is a question worth pondering. In fact, the foregoing argument was made by Mr. Naveen Jindal, which led to the passage of The Prevention of Insults to National Honour (Amendment) Act, 2005.

The display and usage of National Flag in India are governed by Flag Code of India, 2002 and The Prevention of Insults to National Honour Act, 1971. The 1971 enactment makes several actions like burning, mutilation, disfiguration, or showing disrespect towards the Flag in any manner punishable up to three years and with fine or with both. Interestingly, it does not include clothing.

The Act of 1971 was amended in 2005 enabling the common people to use National Flag on their costumes, uniforms or accessories of any description in a respectable manner with the following safeguards -:

  1. The National Flag shall not be used as a portion of costume, uniform or accessory of any description worn below the waist, and
  2. It shall not be used by way of embroidering or printing in items of daily use such as cushions, handkerchiefs, napkins, undergarments or any dress material.

Further, in the infamous case of National Legal Services v. Union of India the Apex Court brought one’s choice of dress under the ambit of Article 19 of the Indian Constitution.

Therefore, use of National Flag on the dress above the waist is legal in India.

FREEDOM OF SPEECH AND EXPRESSION

Article 19(1)(a) of the Indian Constitution ensures citizens of India the freedom of speech and expression. The reasonable restrictions under Article 19(2) are-:

“Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

The restrictions under Article 19(2) nowhere suggest of curtailment of any particular dressing type. Our constitution framers seem to have drafted the article with great caution, giving an exhaustive list of restrictions.

The words ‘morality or decency’ are words of wide meaning. Sections 292 to 294 Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections talk about the prohibition of the sale or distribution or exhibition of obscene words, etc. in public places.

The Apex Court in the case of S. Khushboo v. Kanniammal reiterated,

“Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy”.

POSITION IN OTHER COUNTRIES

  1. United Arab Emirates: In Dubai, while there is a possibility of imprisonment for being “inappropriately dressed”, the flag dresses are hugely bought and sold near the National Day each year. There are no prohibitory laws regarding the wearing of Flag.
  2. United Kingdom: There is no Flag Act in UK law and the Union Flag is the national flag by long-established custom and practice, rather than by statute.
  3. Scotland: In Scotland, there are two flags in use, one is the official one while another is in unofficial use. The second one remains the “royal standard of King and Queen”. The use of the official flag as a dress is neither restricted not specifically allowed. The unofficial flag can be used strictly by the King or queen or as per their permission.
  4. United States of America: In U.S. a set of guidelines were brought in 1942, regarding the display and use of the flag of the United States. These guidelines are known as The U.S. Flag Code and are unenforceable. The code does not allow the ‘commercial use of the flag’, like clothing. As per the code the flag shouldn’t be used in clothing, drapery, etc. and no part of the flag should ever be used as a costume or athletic uniform. However, in U.S. right from shorts to hats to even shoes, the American flag is one of the most common prints worn. Historian Marc Leepson, the author of Flag: An American Biography says, “Flag lapel pins could technically be against the code, but the presidents themselves wear it.”

POSITION IN INDIA

Ironically, the situation in America is in contrast to that in India.

In India, the Constitution, as well as the law, legislated in consensus with it, give us the freedom to wear dresses having the National Flag, above the waist, but ‘nationalists’ do not allow it.

In the case of Union of India v Naveen Jindal the Supreme Court thoroughly discussed the National flag. The case was regarding the flying of the national flag on private buildings, which the government contended, was not allowed under The Flag Code, 2002. The court while discussing the matter said,

Due to the various restrictions imposed on the use and display of the National Flag, an impression has developed among people as if the national Flag is meant for Government use only and the people at large are permitted unrestricted display of National Flag only on certain limited occasions. This has probably created a feeling of dissatisfaction among certain sections of people of India.”

The Court interpreted that the National flag can be flown with regards to Article 51-A making the right to fly the flag a qualified right and not an absolute one. The court held ‘Right to fly the national flag’ a right under Article 19(1)(a). The court enunciated,

“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.”

These principles can be well applied in the case of wearing of National Flag too. There are innumerable examples of someone being criticized for having sported the National Flag as a part of his clothing. In the case of Shyam Narayan Chouksey v Union of India Justice DY Chandrachud said, “Should we wear patriotism on our sleeve?” The question in the case of the national flag is, ‘Can we?’

CONCLUSION

The lines between nationalism and patriotism have been blurred in India over the period. George Orwell said in his essay ‘Notes on Nationalism’,

“Nationalism is not to be confused with patriotism… By ‘patriotism’ I mean devotion to a particular place and a particular way of life, which one believes to be the best in the world but has no wish to force on other people. Patriotism is of its nature defensive, both militarily and culturally. Nationalism, on the other hand, is inseparable from the desire for power.”

He categorically said that “misplaced patriotic pride” can act as a barrier to progressive schemes and “Nationalism does not necessarily mean loyalty to a government or a country, still less to one’s own country.”

Flag in one’s hearts is what should be given more importance to, and that cannot be judged by the absence or presence of the flag on his body. It is a way of expression, which cannot and should not be curbed by anyone.


(Aamna is currently pursuing law in Jamia Millia Islamia, New Delhi. She has interned under Mr. Prashant Bhushan. Her interest lies in Constitutional Law and Criminology.)

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