There is no mandate in the Flag Code of India that the National Flag should be hoisted on all days on the public buildings

HIGH COURT OF MADHYA PRADESH : JABALPUR

(Division Bench)

W.P. No.8342/2019

Shyam Narayan Chouksey

-VersusUnion of India and others

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Smt. Shobha Menon, Sr. Advocate along with Shri Rahul Choubey, 

Advocate for the petitioner.

Shri Sandeep Kumar Shukla, Advocate for the respondents No.1 

and 2 on advance copy.

Shri Siddharth Seth, Advocate for respondents No.3 and 4 on 

advance copy.

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CORAM :

Hon'ble Shri Justice S.K. Seth, Chief Justice.

 Honble Shri Justice Vijay Kumar Shukla, Judge.

Whether approved for 

reporting ?

 Yes.

Law laid down There is no mandate in the Flag Code of

India that the National Flag should be hoisted

on all days on the public buildings, therefore,

no writ can be issued under Article 226 of the

Constitution of India.

Significant paragraph 

Nos.

 5.

O R D E R

(Jabalpur, dtd.26.04.2019)

Per : Vijay Kumar Shukla, J.-

The present petition is filed as pro bono publico seeking

a direction to incorporate the suggestions made in representation

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regarding Flag hoisting on public buildings on all days in the Flag

Code of India, 2002 [for short `the Flag Code]. The grievance of

the petitioner is that he has submitted a representation to the

respondents in this regard but till date no heed has been paid to it.

2. The petitioner submits that he is a septuagenarian and a

citizen of India. He served in the Central Government  Military

Engineering Services (MES) and Central Warehousing Corporation.

According to him, he has been espousing various social causes and

national honour as well. Earlier, he had approached this Court in a

public interest litigation in the year 2001 raising voice against

disregard to National Anthem depicted in the movie Kabhi Khushi

Kabhi Gam. He also filed a PIL before the Apex Court pertaining

to National Anthem. It is strenuously urged by him that the National

Flag should be hoisted at all polling booths on the date of voting.

He has made further suggestions that the National Flag should be

hoisted on certain specific dates as well, i.e., 30th January  the date

when Mahatma Gandhi was assassinated; 13th April  when

massacre of freedom-fighters took place at Jaliawala Bagh in which

almost 379 people last their lives; 23rd March  when three freedomfighters Shahid Bhagat Singh, Sukhdev and Rajguru were hanged.

Other suggestions for hoisting of the National Flag are, on the

demises of constitutional dignitaries and eminent personalities in

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various fields of the society, at Schools and prominent government

buildings etc. In substance, the petitioners prayer is that these

suggestions directed to be incorporated in the Flag Code by

considering his representation.

3. The issue that whether flying of the National Flag is a

fundamental right within the ambit and sweep Article 19(1)(a) of the

Constitution of India, came up for consideration before the Apex

Court in the case of Union of India vs. Naveen Jindal and

another, (2004) 2 SCC 510. The matter pertaining to playing of

National Anthem prior to display of movies is still pending for

adjudication before the Supreme Court in the case of Shyam

Narayan Chouksey vs. Union of India, (2018) 2 SCC 574.

However, the Apex Court has modified the earlier interim order to

the extent, that playing of the National Anthem is not mandatory

before starting of a movie but if the National Anthem is played in

the cinema halls prior to showing of films, it is mandatory for

audience to stand up in respect. However, if the National Anthem is

played as part of storyline of a feature film or newsreel or

documentary, audience need not stand up.

4. In the case of Naveen Jindal and another (supra) the

respondent-petitioner was stopped from flying the National flag atop

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of his factory. Before the High Court he contended that no law

could prohibit flying of the 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. The Apex Court held that right to fly the National Flag is a

fundamental right but subject to restrictions. Paras 87, 89 and 90 of

the judgment being relevant for the present purpose, are extracted

hereunder:

87. The right to fly the National Flag is a

fundamental right but subject to restrictions. The

right is not an unfettered, unsubscribed,

unrestricted and unchannelled one. Even

assertion of the right to respectfully fly the flag

vis-a-vis the mere right to fly the flag is regulated

and controlled by two significant parliamentary

enactments, namely, the Emblem and Names

(Prevention of Improper Use) Act, 1950 and the

Prevention of Insults to National Honour Act,

1971.

xx xx xx xx

89. We, however, hope and trust that

Parliament, keeping in view the importance of the

question involved in this matter, shall make a

suitable enactment for the aforementioned

purpose.

90. For the aforesaid reason, we hold that : (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

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manifestation of his allegiance and feelings and

sentiments of pride for the nation. (ii) The

fundamental right to fly the 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

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. (v) For the purpose of interpretation

of the constitutional scheme and for the purpose

of maintaining a balance between the

fundamental/legal rights of a citizen vis-a-vis, the

regulatory measures/restrictions, both Parts IV

and IV-A of the Constitution of India can be taken

recourse to.

5. A co-ordinate Bench of this Court in a public interest

litigation in V.K. Naswa vs. Union of India and others [W.P.

No.13829/2016] referring to the judgment passed in the case of

Naveen Jindal and another (supra), by order dated 10-4-17

declined to issue mandatory directions for hoisting of the National

Flag every day on the public buildings. The Court held that there is

no mandate in the Flag Code that the National Flag should be

hoisted on all days on the public buildings.