Har Ghar Tiranga     Narasimhan Vijayaraghavan                              

 

Har Ghar Tiranga

Narasimhan Vijayaraghavan

 

 

 

 

India is celebrating its 75th year of Independence as Azadi ka Amrit Mahotsav. The BJP government has let out a clarion call to We the People to hoist the flags in our homes and public places and participate in the nationalist fervor. Post Offices are selling the tricolor and strangely we are importing  too, as we are ‘running short of supply’.

 

It may  just be the right time to go legally anecdotal with our national flag. Not long ago, the unfurling of the tricolor was confined  to Independence and Republic Days. It was permissible only to Public authorities in Public Places. Private citizens, as you and I, were not entitled to it.

 

 

 

It was only on Jan 23,2004 that We the People got a handle to handle the tricolor. In a landmark judgment on that day, the Supreme Court upheld the right to citizenry in Union of India v. Naveen Jindall. The apex court answered the question – In this appeal 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 the Constitution of India, in the affirmative.

 

Gregory Lee Johnson burned an American flag outside of the convention center where the 1984 Republican National Convention was being held in Dallas, Texas. Johnson burned the flag to protest the policies of President Ronald Reagan. He was arrested and charged with violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger in others. A Texas court tried and convicted Johnson. He appealed, arguing that his actions were “symbolic speech” protected by the First Amendment. The matter was escalated to the Supreme Court of the United States (SCOTUS).

 

 

 

 

A 5:4 majority of the Court, according to Justice William Brennan, agreed with Johnson and held that flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment. The majority noted that freedom of speech protects actions that society may find very offensive, but society’s outrage alone is not justification for suppressing free speech.

 

Our framers deliberately and  consciously did not go for free speech as in the US of A. Instead, they enacted in Part III of our Constitution, fundamental  rights, including free speech – by carving out reasonable restrictions thereto. This was in keeping with not only the literacy status in 1949/1950 but also the cultural mornings of our civilization.

 

 

 

In the well known decision in Express Newspapers v. Union of India ( 1984),

it was held by the Supreme Court that there ought to be a reasonable balance between the freedoms enshrined under Article 19(1) and the social control permitted by clauses (2) to (6) our Constitution. Free speech in India surely does not include right to mutilate or burn or disrespect our national flag. While individual rights matter, our framers made sure that it shall yield to societal or public interest.

 

In the US, free speech is limitless. Even hate speech would come within its ambit. Thanks to the SCOTUS verdict in Newyork Times v. Sullivan (1964), those in public life have a restricted  right even against outrageous defamation. Just hear the late night shows of the likes of Bill Maher, Stephen Colbert, Jimmy Kimmel, Trevor Noah, the President and Judges of SCOTUS  are taken to the cleaners. No holy cows whatever. The  language is brutal.

 

 

 

 

Thankfully, in India, we have limits to such remit. But, on the unfurling of national flag, we were prudish and petulant. Naveen Jindal, industrialist MP from Congress, took up the cause which got escalated to Supreme Court. In a refreshing and path breaking pronouncement,  R K Laxman’s common man too, got his right to hoist the national flag with decency, decorum and dignity.

 

Supreme Court found that there were two views across nations. “There are two main schools of thoughts governing the free use of the flag. On one hand, it is contended that the policy of India has so far been to restrict the use of the National Flag with a view of ensuring that it is not dishonored in any manner. The instructions contained in the Flag Code are intended to ensure that proper respect is shown to the National Flag and that the Flag is not used indiscriminately……. However, on the other hand, there is another set of people who ardently believe that there exists strong reasons to liberalise the use of National Flag”

 

 

 

 

 

Digging into the practices across democratic polities, the apex court concluded 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) 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 “.

 

 

 

We are much better of than the US of A. We have struck a fine constitutional balance. In the 75th year of Independence,We the People have the fundamental right to celebrate it  by flying the national flag atop our homes. Equally, there may be those tilting against the State and willing to dissent. The limit to their remits shall fall short of the US standards,beware, as upheld in the Johnson case. Let us be grateful to our forefathers for drawing the contours to our fundamental rights and the  judiciary for its balanced verdict  in the Naveen Jindal case.

 

( Author of Constitution- its Making & Working, OakBridge and practicing advocate in the Madras High Court).