TaxTMI 
TaxTMI 
2004 (1) TMI 685
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....ould 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. 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 constitutionally 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 op....
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....t us to freedom. But it also beckons us to fulfill their vision of a just and united India. As we confront crucial challenges to our security, our unity and integrity, we cannot but heed to the call of this flag to rededicate ourselves to the establishment of that peaceful and just order wherein all Indians irrespective of creed, caste or sex will fulfill themselves." When the draft of Indian Constitution was being debated, the Constituent Assembly realized the importance of the National Flag. An ad hoc committee therefor was constituted headed by Dr. Rajendra Prasad to design the Flag for free India. Other members of the Committee were Abul Kalam Azad, K.M. Panikar, Sarojini Naidu, C. Rajagopalachari, K.M. Munshi and Dr. B.R. Ambedkar. The Flag Committee having been constituted held several meetings and studied the question in depth. It arrived at the following decision : "(a) The flag of the Indian National Congress should be adopted as the National Flag of India with suitable modifications, to make it acceptable to all parties and communities in India. (b) The flag should be tricoloured, with three bands horizontally arranged. (c) The colours sho....
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.... was adopted as under : "Resolved that the National Flag of India shall be a horizontal tricolour of deep Saffron (Kesari), white and dark green in equal proportion. In the center of the white band, there shall be a wheel of navy blue to represent the Chakra. The design of the wheel shall be that of the Wheel (Chakra) which appears on the abacus of the Sarnath Lion Capital of Asoka." National Flags are intended to project the identity of the country they represent and foster national spirit. Their distinctive designs and colours embody each nation's particular character and proclaim the country's separate existence. Thus it is veritably common to all nations that a national flag has a great amount of significance. In order that the respect and dignity of the flag be fostered and maintained, several countries have laid down rules relating to the use, display, etc. of the flag, along with rules to provide against the burning, mutilation and destruction of the flag. At this stage we would like to deal with the question as to how flying of national flag is understood by other countries. The question at hand relates to how many countries allow the free use of the natio....
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....2001, pp. 14-15) Elsewhere among the Commonwealth nations, in Australia the rules for flying the national flag only relate to flying the flag with dignity. In fact, it is mentioned that the government hopes that all Australians will honour and fly it with the pride befitting a national symbol. Similarly, it will be noticed that even in New Zealand, there are no special days prescribed on which only individuals can fly the flag. In fact it is specifically stated that the New Zealand Flag may be flown on any day of the year. The rules are meant to serve as guides to simplify flag flying and lay down the correct way to display the national flag. In fact in New Zealand the flag can be used for advertising and commercial use also, provided that a faithful representation should always be achieved with the flag being reproduced in its true colours. In China, the Flag can be displayed even on New Year's Day, Spring Festival and in public places such as squares and parks. Further, even in Malaysia, there is no restriction on the flying of the flag. The Flag can be put on cars and even on the inside of cars and flags are almost all over the place. The Malaysians use stickers wi....
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....e shall be no restriction on the display of the National Flag by members of general public, private organizations, educational institutions etc. except to the extent provided in the 1950 Act and 1971 Act and any other law enacted on the subject. Having regard to the aforementioned statutes, as regards flying of the National Flag, regulations which are 13 in number have been laid down in the Flag Code, one of them being : "(i) the Flag shall not be used for commercial purposes in violation of the emblem and Names (Prevention of Improper Use) Act, 1950;" Section I of Part III provides for defence installations/Heads of Missions/Posts whereas Section II provides for official display. Section II of Part II provides for as to how the National Flag may be hoisted in educational institutions. Section III of Part III lays down the manner in which correct display of the National Flag should be made and in contrast thereto Section IV provides for incorrect display. Section V provides as to how misuse of the National Flag should be prevented. Section VI provides for salute of the Flag. Section VII provides that display with flags of other Nations and of United Nations. &nb....
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....estrictions 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. ? With the electronic media and satellite communication becoming popular, it is very difficult to ensure that public display of the National Flag is avoided. For instance, in various international sports or cultural events, people identify themselves with their country by displacing the National Flag. It is an expression of pride. It is an expression of genuine enthusiasm. If the restrictions imposed on the use of the National Flag are implemented scrupulously, it would amount to discouraging the Indian citizens or Indian nationals from identifying themselves with the Flag of the country. ? The restrictions imposed on the use of the National Flag should be commensurate with the international practices being adopted by various democratic countries and the Government should not impose any restriction, which dista....
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....dia 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 their 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 statute book, it may be held to be a part of the fundamental right. Before we proceed further, it is necessary to deal with the question, whether Flag Code is "law"? Flag Code concededly contains the executive instructions of the Central Government. It is stated that the Ministry of Home Affairs, which is competent to issue the instructions contained in the Flag Code and all matters relating thereto are one of the items of business allocated to the said Ministry by the President under the Government of India (Allocation of Business) Rules, 1961 framed....
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....te is found to infringe any of the freedom guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the state from taking action under the regulations." To the same effect are the decisions of this Court in State of Madhya Pradesh and Another vs. Thakur Bharat Singh [AIR 1967 SC 1170], Bijoe, Emmanuel and Others vs. State of Kerala and Others [(1986) 3 SCC 619]. In S.C. Advocates-on-Record Assn. vs. Union of India [(1993) 4 SCC 441], it was held : "Constitution is the "will" of the people whereas the statutory laws are the creation of the legislators who are the elected representatives of the people. Where the will of the legislature-declared in the statutes-stands in opposition to that of the people- declared in the constitution-the will of the people must prevail." In Punit Rai vs. Dinesh Chaudhary [(2003) 8 SCC 204], this Court held that a circular letter as regard determination of caste of a child born from a non-Scheduled Caste Hindu father and a Scheduled Caste mother shall not have the force of the statute, stating : "The said circular letter has not been issued by th....
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....e Constitution. In Victor Chandler International vs. Customs and Excise Commissioners and another [2000) 2 All ER 315 at p. 322], it was stated : "27. There are, of course, some gaps in legislation that cannot be filled by judge made law. But it is now a well known rule of statutory construction that an 'ongoing' statutory provision should be treated as 'always speaking'. The principle is set out in Bennion Statutory Interpretation (3rd edn, 1997), p.686: '(2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking....(3) A fixed-time Act is intended to be applied in the same way whatever changes might occur after its passing. Updating construction is not therefore applied to it. 28. These principles received the endorsement of the Court of Appeal in R. vs. Westminister City Council, ex p A (1997) 9 Admin LR 504 at 509, where Lord Woolf MR described the National Assistance Act 1948 as - 'a prime exampl....
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....rald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd to constrain State defamation laws, both statute and common law. In 1996, however, the High Court has been more restrained in its interpretation of the extent of the implication and in the development of further implications which rest upon the constitutional system of representative government." In The State of Play in the Constitutionally Implied Freedom of Political Discussion and Bans on Electoral Canvassing in Australia, George Williams, Parliamentary Library Law and Bills Digest Group Research Paper 10, 1997, it was observed : "Despite judicial moves to strengthen protection for political discussion in Australia, there have been countervailing political moves to restrict certain forms of political speech. This has frequently been driven by inquiries undertaken by parliamentary committees at both the State and Federal level. ...Does this mean that Australian Parliaments and the High Court are on a collision course over free speech in the electoral process? The answer need not be yes." The decisions of the High Court in Australian Capital Television Pty Ltd v Commonwealth (the....
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....on with coercive legal censorship in the hands of persons supporting one ideology who are motivated to use the power of the censor to suppress opposing viewpoints. The Canadian approach to freedom of expression allows for a wide conception of "expression" within s. 2(b). The Supreme Court of Canada has stated that a wide and inclusionary approach to the interpretation of the Charter's free expression guarantee is to be preferred (see Ford v. Quebec 1988 (2) SCR 90, and Irwin Toy v. Quebec (Attorney General) 1989 (1) SCR 927). Thus, in Irwin Toy, Chief Justice Dickson explained that "'expression' has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content." Not only is there a freedom of expression, there is also a freedom not to express. As Justice Beetz said in National Bank of Canada v. R.C.U. 1984 (1) SCR 269 [p. 377 text], "all freedoms guaranteed by s. 2 of the Charter necessarily imply reciprocal rights: ... freedom of expression includes the right to not express." There are of course limits to free speech and free press guarantees, as the Canadian Supreme Cour....
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..... Different facets of Article 14 of the Constitution of India have been discussed in a series of judgments. The expanded notion of the principle of equality as enunciated by E.P. Royappa vs. State of Tamil Nadu [AIR 1974 SC 555] followed in Maneka Gandhi vs. Union of India [AIR 1978 SC 597 at para 56], R.D. Shetti vs. International Airport Authority of India [AIR 1979 SC 1628], Ajay Hasia vs. Khalid Mujib [AIR 1981 SC 487] and Neelima Misra vs. Harinder Kaur [(1990) 2 SCC 746]. So far as right of speech and expression is concerned, vis-`-vis censor and other regulations thereof, this Court in Kameshwar Prasad vs. State of Bihar [AIR 1962 SC 1166] observed : "Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech." In L.I.C. vs. Professor Manubhai D. Shah, [(1992)....
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....asic values which the people of India cherished when they gave unto themselves the Constitution for free India. That was with a view to ensuring that their honour, dignity and self respect will be protected in free India. They had learnt a bitter lesson from the behavior of those in authority during the colonial rule. They were, therefore, not prepared to leave anything to chance. They, therefore, considered it of importance to protect specific basic human rights by incorporating a Bill of Rights in the Constitution in the form of fundamental rights. These fundamental rights were intended to serve generation after generation. They had to be stated in broad terms leaving scope for expansion by courts. Such an intention must be ascribed to the Constitution-makers since they had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution-makers employed a broad phraseology while drafting the fundamental rights so that they may be able to cater to the needs of a changing society..." 8. The words "freedom of speech and expression" must, therefore, be broadly construed to include the free....
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....e 19(2)." Thus, the right to impart and receive information by air waves and otherwise is a species of the right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. In Indian Express Newspapers vs. Union of India & Ors. [(1985) 1 SCC 641], the law is stated in the following terms : "Freedom of expression, as learned writers have observed, has four broad social purposes to serve : (i) it helps an individual to attain self fulfillment, (ii) it is assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration." Thus, the burden of import duty imposed on newsprint was hel....
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....ermanent policy. Any surface serenity it creates is a false one. It will erupt one day. Our Constitution permits a free trade, if we can use the expression, in ideas and ideologies. It guarantees freedom of thought and expression - the only limitation being a law in terms of clause (2) of Article 19 of the Constitution. Thought control is alien to our constitutional scheme. To the same effect are the observations of Robert Jackson, J. in American Communications Association v. Douds (339 US 382, 442-43 (1950) : 94 L Ed 925) with reference to the U.S. Constitution : "Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored." In Hindustan Times and Others vs. State of U.P. and Another [(2003) 1 SCC 591], this Court noticed as to how the right of its shareholders to have a free press is a fundamental right keeping in view the fact that the newspapers serve as a medium of exercise of....
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....he Constitution. So I agree with the Court that he must go free." In US v. Shawn D. Eichman, 110 L Ed 2d 287, it was held : "Government may create national symbols, promote them, and encourage their respectful treatment. But the Flag Protection Act of 1989 goes well beyond this by criminally prescribing expressive conduct because of its likely communicative impact." We may, however, notice that in Board of Educ. V. Barnette, 319 US 624, it has been held : "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." 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 ....
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....tution of India which are in the following terms: "48-A. Protection and improvement of environment and safeguarding of forests and wild life.-- The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country." "51-A. Fundamental duties. -- It shall be the duty of every citizen of India -- ... ... ... ... ... ... ... (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;" We cannot shut our eyes to the statements made in Article 48-A of the Constitution of India which enjoins upon the State to protect and improve the environment and to safeguard the forests and wild life of the country. What is destructive of environment, forest and wild life, thus, being contrary to the Directive Principles of the State Policy which is fundamental in the governance of the country must be given its full effect. Similarly, the principles of Chapter IVA must also be given its full effect. Clause (g) of Article 51A requires every citizen to protect and improve the natural environment including forests, lakes....
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....ion and judicial directions are available and still there are violations of fundamental duties by the citizens, this would call for other strategies for making them operational. The desired enforceability can be better achieved by providing not merely for legal sanctions but also combining it with social sanctions and to facilitate the performance of the task through exemplar, role models. The element of compulsion in legal sanction when combined with the natural urge for obedience of the norms to attract social approbation would make the citizens willing participants in the exercise. The real task, therefore, is to devise methods which are a combination of these aspects to ensure a ready acceptance of the programme by the general citizenry and the youth, in particular. The Committee is strongly of the view that the significance of dignity of the individual in all its facets and objective of overall development of the personality of the individual must be emphasized in the curriculum at all the stages of education. This requires consciousness of citizenship values which are a combination of rights and duties, and together give rise to social responsibilities. Methods must be ....