NAVEEN JINDAL Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution the petitioner has challenged the restriction contained in the Flag Code-India relating to flying of the National Flag by private citizens and seeks to have the same quashed being illegal and invalid with a further prayer restraining the respondents from interfering with his right to fly the National Flag on his premises in a respectful manner.

(2.) Petitioner has done his M.B.A. from the U.S.A. and is presently working as a Joint Managing Director of Jindal Strips Limited, a public limited company incorporated under the Companies Act, 1956. Petitioner says he has been looking after the factory of this company at Raigard in Madhya Pradesh. He started flying the National Flag at his office premises. To his rude shock he was told by certain Government officials of the State of Madhya Pradesh that flying of the National Flag by an ordinary citizen was not permitted under the law and was an offence and that the petitioner was liable to be prosecuted for flying the National Flag on his premises. Petitioner says that there is no law prohibiting the flying of National Flag by private individuals and restraint on him from flying the National Flag is put only because of Flag Code. It is stated that the Flag Code contained executive instructions of the Government of India 599 and has not been issued under any law. Petitioner says prohibition imposed upon him by virtue of the Flag Code is in infringement of his fundamental right guaranteed under Article 19(l)(a) of the Constitution. Under this Article, all citizens shall have the right to freedom of speech and expression. This right is, however, subject to certain reasonable restrictions as contained in clause (2) of Article 19, which is as under "(2) 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."

(3.) Petitioner says even if it is assumed that Flag Code contained instructions and is law the restrictions could not be said to be reasonable under clause (2) of Article 19 of the Constitution. He says that he is not aware if any such restriction on flying the National Flag of the country exists in any other country and in this connection he referred to the instructions applicable to flying of flag in the United States of America. The petitioner has also referred to a decision of the U.S. Supreme Court in Texas v. Gregory Lee Johnson, (1989) 491 US 397, 105 L Ed 2nd 342, 109 S Ct 2533, where, he said, it has been held. that even the burning of a flag to express protest over some action of the Government was protected by the right to freedom of speech and expression and any law restricting such a right and permitting prosecution for burning the flag in these circumstances would be unconstitutional. Petitioner says he, however, does not subscribe to the correctness of whole of the decision rendered by the U.S. Supreme Court and he says his grievance is that no restraint be put on him from flying the National Flag of his own country.