For 55 years, Indians could not fly their own flag on an ordinary day

Sometime in the early 1990s, a man named Naveen Jindal put an Indian flag on the roof of the office at his factory in Raigarh, then in Madhya Pradesh and now in Chhattisgarh. He was in his twenties and running the plant for the family company.

Officials told him to take it down. By the accounts published since, the flag was confiscated and he was informed he could be prosecuted. The Supreme Court's own summary of the case, written years later, puts it more drily:

He being in charge of the factory of the said Company situated at Raigarh in Madhya Pradesh was flying National Flag at the office premises of his factory. He was not allowed to do so by the Government officials on the ground that the same is impermissible under the Flag Code of India.

He had not burned it, defaced it or flown it upside down. He had flown the flag of his country, the right way up, on a building he was responsible for, on a day that was not a national holiday. That was the offence.

Whose flag it was

This is the part most people do not know, and it is not a technicality. Until 2002, an ordinary Indian could not fly the national flag on an ordinary day. Display by the general public was confined to designated national occasions. The rest of the year, routine flying belonged to government buildings and to a defined list of officials and dignitaries.

There was no single statute saying so in as many words. The position was assembled from the Emblems and Names (Prevention of Improper Use) Act of 1950, the Prevention of Insults to National Honour Act of 1971, and the old Flag Code, which was a set of executive instructions rather than a law passed by Parliament. Together they produced a settled understanding: the flag was the state's, and the citizen was a spectator with visiting rights twice a year.

It is worth pausing on how odd that is for a flag with this particular history. The design descends from the Swaraj flag of the Congress, based on Pingali Venkayya's work and modified by Gandhi. It was carried in processions by people the same government had jailed. It was a protest banner before it was a state emblem. And then, once the protest succeeded, flying it became something you needed permission for.

The argument he actually made

Jindal went to the Delhi High Court, and the case he ran was cleverer than "let me fly a flag".

He argued two things. First, that the Flag Code was not law at all. It had never been enacted by Parliament; it was an internal instruction to the administration, and an instruction cannot by itself take away a citizen's liberty. Second, that flying the national flag is a form of expression, and expression is protected by Article 19(1)(a) of the Constitution.

In 1995 the High Court agreed on both counts. The Union Government appealed.

The government changed the rule while still fighting the case

Then something happened that is easy to skip past and is, I think, the most revealing moment in the whole story.

While its appeal was still pending, the government rewrote the rules anyway. The Flag Code of India, 2002 took effect on 26 January 2002, and its second part deals specifically with display of the flag by members of the public, private organisations and educational institutions. From that date an ordinary citizen could fly the tricolour on any day of the year, provided they did so with dignity.

So the executive conceded the substance in 2002 while continuing to argue the principle in court. It had decided the policy was wrong, and still wanted the law to say that permission had been its to give.

23 January 2004

The Supreme Court delivered its judgment in Union of India v Naveen Jindal on 23 January 2004, on an appeal filed back in 1996. The bench was Chief Justice V.N. Khare with Justices Brijesh Kumar and S.B. Sinha, and it upheld the High Court.

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).

Not a privilege, not a concession in a code the Home Ministry could rewrite. A fundamental right, sitting in the same clause as free speech, and subject only to the reasonable restrictions that clause already allows.

Count the years. The flag became the national flag in 1947. It became something an ordinary Indian could fly on an ordinary day in 2002, and a right in 2004. That is fifty five years in which the answer to "can I fly my country's flag today" was, for most people on most days, no. Jindal has since argued that 23 January should be marked as National Flag Day.

What a flag had to be made of

The other half of the story is not about permission but about material, and it is stranger than the legal part.

An Indian national flag was not simply a piece of cloth in the right colours. It had to be hand-spun, hand-woven khadi, to a Bureau of Indian Standards specification of remarkable precision: 150 threads per square centimetre, four threads per stitch, and one square foot weighing exactly 205 grams.

The part that attaches the flag to the pole, the khadi-duck, uses a weave that meshes three threads instead of the usual two, and by most accounts fewer than twenty weavers in the country still know how to do it. The cloth came from handloom units in the Dharwad and Bagalkot districts of northern Karnataka. Licences to manufacture were issued through the Khadi and Village Industries Commission, and as recently as 2022 there were only four approved flag production units in all of India.

A country of well over a billion people had four places that were allowed to make its flag, and a specification that fixed the weight of a square foot of it to the gram.

Then the rules came off, quickly

On 30 December 2021, the Flag Code was amended. The clause describing what the flag is made of was rewritten to read that it "shall be made of hand-spun and handwoven or machine-made, cotton/polyester/wool/silk khadi bunting".

In July 2022 it was amended again, so that where the flag is displayed in the open or on the house of a member of the public, "it may be flown day and night". The old rule had brought it down at sunset.

The reason for both changes was Har Ghar Tiranga, a national campaign to get a flag onto every home for the seventy fifth anniversary of independence, with a target in the region of twenty crore flags. Four khadi workshops and a hand-weave known to twenty people cannot produce twenty crore flags. Something had to give, and what gave was the khadi.

The weavers' objection

The khadi producers protested, and their argument deserves to be heard properly rather than filed as nostalgia.

Demand for hand-spun flags collapsed once machine-made polyester ones were legal, which hurt the specific workshops that had spent decades keeping the standard. But the deeper objection was about meaning. Khadi and the spinning wheel are not decorative choices. They were the economic programme of the freedom movement, the thing Gandhi asked people to spin in their own homes as an act of refusal. A flag made of khadi carried that argument in its threads.

The flag that anyone may now fly, day or night, on any house, is in a great many cases made of polyester, possibly by machine. Both of those facts are the same story: the flag became genuinely available to ordinary people, and the price of availability was the material that tied it to the struggle.

Two kinds of not being yours

Within thirty years the tricolour went from a thing that could be taken off your roof to a thing the state urges you to put on it.

It is tempting to read that as a simple journey from restriction to freedom, and it is mostly that. But it is worth noticing that both ends of it involve the government deciding what your relationship with the flag ought to be. In 1994 the instruction was that flying it was not for you. In 2022 the instruction was that you should. The stretch in between, when the answer was that it is your flag and the question is nobody's business, is the bit somebody had to sue for.

Which is the odd afterlife of this case. Most Indians who now put a flag on the balcony in August have never heard of Union of India v Naveen Jindal, and have no idea that doing it on an ordinary Tuesday was, within living memory, something you could lose the flag over.