How countries treat their national flags across the globe

While Kenyans went to elections in supposed perfection of their democracy, India — the world’s largest republican democracy by numbers — was celebrating another milestone of 75 years since independence.

In celebrating this milestone in its freedom and democracy, India’s Prime Minister launched a campaign to have the country’s national flag in every home as the lodestone of the celebrations. Indian citizens bought about 200 million flags in that period. Soon after the celebrations ended, a legal issue arose on the disposal of the flags.

This is because the law in India does not consider the flag as any other image. The Constitution of India requires every citizen to abide by the Constitution and respect its ideals and institutions, including the national flag. That is why it is a criminal offence in India to dispose of a flag in any manner such as throwing it into a bin.

The National Flag code of 20223 states that when a flag is damaged or soiled or needs to be disposed of, it shall not be cast aside or disposed of disrespectfully. It must be destroyed wholly and privately. The code does not stop there: It goes ahead to specify the means by which a flag may be disposed of legally. This would be only by burning or burying the flag.

If the flag is to be buried, the code further directs, then it must be folded in the right way, placed in a wooden box and laid in the earth and surprisingly, a moment’s silence be kept!

If the choice of disposal of the flag is burning, the code requires that a safe place is to be chosen and cleaned. Damaged flags are to be folded and after building a fire, they are to be carefully placed in the centre of the flames. It would be an offence for anyone to burn the flag without folding it or first lighting and then putting it on the fire.

Protocols for flying flag

Any method of disposal of the flag that does not abide by the code would constitute the offence of “disrespecting the national flag” for which on conviction one would be jailed for up to three years.

In the United Kingdom, there is no specific law that provides for how flags may be treated. However, there are protocols on how to fly and display flags such as the Union Flag, or Union Jack of Britain and the flags of England, Scotland and Wales. They state how the flags are to be displayed on vehicles, in buildings, on a flagpole, against other flags and in processions. For purposes of disposal, the protocols state that the disposal should be in a dignified way such as by private burning or tearing and cutting the fabric into small strips that no longer resemble the flag.

In this sense, India and Kenya are somewhat alike although they depart from the British approach on treatment of the flag. In Kenya, the flag is an issue of constitutional implication as one of the symbols of the republic. Its design colours and measurements are specified in a schedule to the Constitution. In addition to this, there is a statute known as the National Flags Emblems and Names Act whose declared purpose is to prevent and prohibit the improper use of the national flag and other national emblems and symbols.

The Act makes it an offence to “insult the national anthem or flag or its likeness” to make an improper use of the flag. The intention is to prevent derogatory treatment of the flag such as by tearing or other means of destruction of the image of the flag as a national symbol. The legislation further provides regulations for the use of the flag and other national symbols and limits displaying the national flag outside government premises other than on a national holiday.

South Africa follows in this trend of Kenya and India in legal demands on how the national flag should be treated. In regulations published in a government gazette issued in 2001, it is required that the flag must be treated with respect at all times. In particular, the flag must not, at any time, touch the ground, or be used as table cloth or be draped in front of a platform, or be upside down, or in personal clothing such as underwear, or used to cover a statue, plaque at unveiling ceremonies or be used to start or finish any competition race or similar competitive event. Where the flag is destroyed beyond repair, destruction must be carried out with “due respect” and requisite ceremonials observed to ensure that the authority and dignity of the state are properly upheld.

However, it deserves note that this respect and dignity are accorded only to the national flag established in post-apartheid South Africa. Before this, South Africa had an apartheid-era flag in which some citizens, mainly Afrikaners, have continued to take pride. In 2019, a court held displaying the apartheid-era flag of South Africa in public in some circumstances could constitute hate-speech that discriminates against black South Africans by violating equal protection laws. The judge in that case held that the apartheid era flag could be displayed in confined situations such as academic, artistic and journalistic displays.

Though national flags are considered sacred in almost all countries and its destruction would attract displeasure and criminal prosecution in most countries, the United States case of Gregory Lee Johnson and Texas is one that would rile many on the constitutionality of prohibiting a person from destroying a flag.

In the case of Johnson against the state of Texas, the United States Supreme Court invalidated, and declared as unconstitutional, a law that prohibited the desecration of the flag. In this case, Mr Johnson burned an American flag outside a centre where the Republican Party was holding its national convention in Dallas. He did this in protest against the policies of then-president and republican nominee for re-election, Ronald Reagan. Mr Johnson was arrested and charged with the offence of violating a Texas law that prohibited the desecration of a venerated object like the US flag because such action could ignite anger in other citizens who held the Star Spangled Banner as a much-adored national symbol.

On conviction by the Texas court, Johnson appealed. His ground of appeal was that the burning of the flag constituted symbolic speech protected by the free speech clause of the US Constitution.

The majority of the Supreme Court agreed that burning the flag constituted free speech protected under the First Amendment of the US Constitution and that a law prohibiting a person from expressing himself by burning the flag, which did not belong to the state constituted censorship and abridgement of free speech, which no state could censor or punish as a crime.

Federal crime

This decision invalidated the laws on desecration of the American flag, which hitherto existed in most states within the US.

Later, the Supreme Court affirmed this decision and struck out as unconstitutional the Flag Protection Act, which Congress had passed to make desecration of the US flag a federal crime.

It follows that while the national flag is held with respect in most countries, its treatment is not the same everywhere. While in one jurisdiction the law dictates that even an old or destroyed flag is to be treated almost like a person, to be buried or burnt with respect and in private, in another country, a citizen may freely destroy a flag in public in exercise of his right to express himself.

The writer is the head of Legal and Nation Media Group. [email protected]