DESECRATION AND FLAG BURNING

This article is written by Shreya Rai, AMITY LAW SCHOOL, NOIDA, UTTAR PRADESH, legal intern under Legal Vidhiya.

ABSTRACT

Desecration is the act of showing contempt for, or violating, anything holy or sacred. In many countries, the act of burning a flag is considered a sacrilege and has sparked heated legal and social discussions. Flag burning is seen by some as an expression of free speech and protest, while others see it as disrespectful and disloyal behaviour that weakens the country as a whole.

The heated discussion surrounding the burning of American flags has shed light on the intertwined nature of identity, patriotism, and free speech in contemporary society. The First Amendment, which ensures the right to free speech in the United States, also protects the burning of the flag. However, there have been efforts to make flag burning illegal on the grounds that it constitutes hate speech and hence should be criminalised. Countries where the national flag has cultural or symbolic importance have comparable arguments to the United States over flag disrespect and flag burning. The difficulty of combining individual rights with communal ideals in diverse and democratic countries is shown in the ongoing debate over flag burning, which persists despite the legal and social viewpoints on the topic.

KEYWORDS : Desecration, Flag Burning, Unpatriotic, National Unity, Identity, Nationalism, Free Expression, Individual Rights, Collective Values.

INTRODUCTION

To desecrate is to treat with contempt or to violate with violence anything which is held in sanctity. Any location, symbol, object, or burial that has religious or spiritual value is fair game. The notion of desecration has been a cause of contention and debate among people of various faiths and civilizations throughout human history.

 Damage to or destruction of the item or site is just one kind of desecration; defilement and inappropriate usage are other forms of disrespect. Desecration may be an act of protest or revolt, but it can also stem from a lack of understanding or acceptance of other people’s values and beliefs. Desecration is a very offensive practise that may result in significant mental anguish for those who witness it or are directly touched by it. It may also spark religious or political strife, which can have far-reaching repercussions. The fact that desecration continues in certain forms despite widespread legal and societal bans against it is illustrative of the need for increased knowledge of and respect for diversity and cultural distinctions.

The term “flag burning” describes the deliberate destruction of a national flag for symbolic or political purposes. It has sparked legal and societal arguments regarding freedom of expression, national identity, and patriotism in numerous countries. Some people think it’s OK to burn a flag as a form of political protest, while others see it as a sign of disdain for the country and a threat to national unity.

HISTORICAL BACKGROUND

Since ancient times, when religious symbols and holy sites were often the focus of violence and destruction by opposing groups, the notion of desecration has a long and complicated historical basis. Desecration has long been a method of protest, challenge to authority, and demonstration of strength throughout history. Flag burning has historically been used as a form of political protest against the government since the 19th century. During the anti-war and civil rights movements of the 1960s and 1970s in the United States, burning the American flag became a highly visible sign of defiance against the government and the status quo.

 In the 1984 decision Texas v. Johnson, the Supreme Court declared that flag burning was a protected form of free expression under the First Amendment, catapulting the topic of flag burning to the forefront of public discourse in the United States. Nevertheless, the controversy surrounding flag burning persisted, and repeated efforts were made to establish legislation criminalising the act. Countries whose flags have cultural or symbolic importance have arguments comparable to the one happening in the United States over flag disrespect and burning. Desecration of the national flag is a criminal offence in certain jurisdictions but in others it is seen as an expression of free speech and is thus permitted. Desecration and burning of flags have a long and complicated history that sheds insight on the interplay between personal freedom, national pride, and the ability to express oneself in contemporary democracies.

Since India won its independence from Britain in 1947, flag burning has been a divisive topic of debate. Tiranga, India’s national flag, is revered as a holy emblem of India’s independence and liberation fight. The Indian flag was destroyed by demonstrators in 1989 as they were protesting the government’s plan to show “The Last Temptation of Christ.” Protesters were detained and charged with breaking the Prevention of Insults to National Honour Act after the incident provoked indignation throughout the country.

The Supreme Court of India upheld the Prevention of Insults to National Honour Act’s ban on flag burning in 1995. The court said that flag burning is not protected by the First Amendment because it threatens national security. However, flag burning has sometimes been used as a means of political protest, most notably by separatist groups in specific parts of India. When the government sees anything like this happening, they tend to take a strong approach because they see it as a danger to national security and cohesion. Whether flag burning is an acceptable form of free speech or a disrespectful act that threatens India’s independence and sovereignty is a contentious debate in India.

NOTABLE EVENTS

Here is a brief historical timeline of notable events related to flag burning:

• 1861: Confederate forces reportedly burned the United States flag at the start of the Civil War.
• 1896: The U.S. Supreme Court ruled in Halter v. Nebraska that states can enforce laws criminalizing flag desecration.
• 1907: The U.S. flag was burned in an anti-American protest in the Philippines during the Philippine-American War.
• 1965: Vietnam War protesters burned American flags at demonstrations.
• 1968: At the Democratic National Convention in Chicago, anti-war protesters burned U.S. flags, leading to violent clashes with police.
• 1984: The U.S. Supreme Court ruled in Texas v. Johnson that flag burning is a protected form of symbolic speech under the First Amendment.
• 1989: The U.S. Supreme Court ruled in United States v. Eichman that a federal law banning flag desecration was unconstitutional.
• 2005: The U.S. Congress passed a proposed amendment to the Constitution that would allow Congress to prohibit flag desecration, but it failed to pass in the Senate.
• 2020: During nationwide protests against police brutality and systemic racism in the United States, some protesters burned American flags as a form of political expression.

This is by no means an exhaustive list of all incidents of flag burning throughout history; rather, it serves as illustrative examples. Beyond the United States, flag burning has been a contentious subject in many other nations as well.

LEGAL AND POLITICAL DEBATES

For decades, legal and political arguments have centred on the highly charged and divisive issue of flag desecration and burning. Others say that these behaviours are disrespectful and should be forbidden, while others claim that they are legitimate forms of free expression under the First Amendment to the United States Constitution. The Supreme Court of the United States has issued rulings on this matter on many occasions. Students wearing black armbands to protest the Vietnam War was deemed to be free speech by the Supreme Court in the landmark decision Tinker v. Des Moines Independent Community School District in 1969. However, in Texas v. Johnson (1989), the Supreme Court declared that it was also permissible under the First Amendment to burn the American flag as a means of protest.

Despite these decisions, there have been persistent attempts to enact legislation at the federal and state levels that make it illegal to burn or otherwise disrespect a flag. Civil liberties organisations have pushed back on these measures, claiming that these kinds of legislation violate people’s rights. Some politicians have used the subject of flag burning and desecration as a rallying cry to sway voters in their favour. Critics from civil rights organisations and many Democrats slammed then-President Donald Trump in 2020 for calling for a constitutional amendment to prevent flag burning.

The burning and desecration of flags is a contentious topic because it raises questions about the balance between free expression and respect for national symbols. Although there are reasonable arguments on both sides of the issue, existing case law recognises these activities as expressions entitled to First Amendment protection.

Proponents of flag-related legislation often argue that flag-desecration and -burning are not protected forms of free expression since they harm national pride and heritage. They can say that burning or otherwise desecrating the flag shows contempt for the sacrifices made by those who have fought for the nation. Furthermore, they may claim that sanctioning such actions normalises disregard for national symbols.

However, others who disagree with laws against flag desecration and burning say that such actions are constitutionally protected free expression and should not be restricted. They could also say that the flag is only a symbol, and that the value of a symbol is determined more by the meaning that people give it than by the value that the symbol itself has. The argument against legislation against desecration and burning of flags is that those who do so are engaged in a form of protest meant to bring attention to problems they believe are significant, and thus such laws are superfluous. They could say that if these things were illegal, it would stifle free speech and prevent people from voicing their thoughts.

ROLE OF CONGRESS WITH RESPECT TO DESECRATION OF FLAG BURNING

It’s a hotly debated topic whether or not Congress should do something about flag burning and disrespect. Laws prohibiting flag burning or desecration may be deemed unconstitutional by the Supreme Court, notwithstanding Congress’ authority to adopt such laws. Legislation limiting flag burning has been introduced in Congress in reaction to Supreme Court judgements upholding flag burning as First Amendment-protected free expression. Under the Flag Protection Act, established in 1989, it is illegal to “knowingly mutilate, deface, physically defile, burn, maintain on the floor or ground, or trample upon any flag of the United States.” However, in United States v. Eichman, the Supreme Court ruled that the legislation was unconstitutional.

Several bills to alter the Constitution to grant Congress the authority to outlaw flag burning or desecration have been submitted in Congress since then. However, civil rights organisations and many politicians have opposed these measures on the grounds that they violate fundamental constitutional protections. Most of the discussion around flag burning and desecration in recent years has been on the cultural and political impact of these acts, rather than on the legal front. While Congress may have some authority to control the flag, any regulations barring its burning or desecration would certainly be found to be in violation of the First Amendment’s guarantee of free expression.

FAILURES:

Legislation introduced in Congress to prevent flag desecration has usually failed to do so.

Under the Flag Protection Act, established in 1989, it is illegal to “knowingly mutilate, deface, physically defile, burn, maintain on the floor or ground, or trample upon any flag of the United States.” However, in United States v. Eichman, the Supreme Court ruled that the legislation was unconstitutional. Several bills to alter the Constitution to grant Congress the authority to outlaw flag burning or desecration have been submitted in Congress since then. However, civil rights organisations and many politicians have opposed these measures on the grounds that they violate fundamental constitutional protections. Most of the discussion around flag burning and desecration in recent years has been on the cultural and political impact of these acts, rather than on the legal front. While Congress may have some authority to control the flag, any regulations barring its burning or desecration would certainly be found to be in violation of the First Amendment’s guarantee of free expression.

PUBLIC OPINIONS

A 2019 survey by the Pew Research Center found that 41% of Americans believe it should be unlawful to burn a flag, while 58% believe it should be permitted. However, there is a clear partisan divide when it comes to opinions on flag burning and desecration, with Republicans being more inclined to favour making such behaviours criminal and Democrats being more likely to favour permitting such behaviours. The general public’s viewpoint on this matter has evolved throughout time. Flag burning was a frequent method of protest and a symbol of defiance to government policies in the late 1960s and early 1970s, particularly during the Vietnam War and the civil rights movement. There was more of a difference in public opinion over flag burning back then, with some Americans defending the practise as an expression of free speech. However, public opinion has become increasingly divided in the years since then, with some holding that flag burning is disloyal and hence should not be protected by the First Amendment.

IMPACT OF FLAG BURNING ON THE BEHAVIOUR OF CITIZENS

The effects of flag desecration, which is the deliberate destruction or contempt of a country’s flag, may range from mild to severe. Some potential outcomes are listed below:

1. Emotional response: Flag desecration can trigger strong emotional responses in citizens who have deep attachments to their country and its symbols. This can lead to feelings of anger, frustration, and even aggression, as people may feel that their patriotism and identity are being attacked.
2. Polarization: Flag desecration can also polarize society, as people may take different sides on the issue based on their political beliefs, cultural background, or personal values. This can create divisions and conflicts that may undermine social cohesion and national unity.
3. Freedom of expression: Some people may argue that flag desecration is a form of free speech that should be protected under the First Amendment of the U.S. Constitution. This can spark debates about the limits of free speech, the role of government in regulating expression, and the balance between individual rights and collective interests.
4. Symbolic meaning: Flags are powerful symbols that represent a country’s history, culture, values, and aspirations. Desecrating a flag can therefore be seen as an attack on these symbolic meanings, which can have a profound impact on citizens’ sense of identity, belonging, and pride.
5. Legal consequences: In some countries, flag desecration is a criminal offense that can result in fines, imprisonment, or other legal penalties. This can deter some people from engaging in such behavior, but it can also raise concerns about the government’s use of force to suppress dissent.

Overall, the impact of flag desecration on citizen behavior depends on many factors, including the context, the social norms, the political climate, and the individual’s beliefs and values. While some people may see flag desecration as a legitimate form of protest or expression, others may view it as a disrespectful and unpatriotic act that undermines national unity and cohesion.

PRECEDENTS AND LAWS PROVIDED BY THE CONSTITUTION AND THE GOVERNMENT

Flag burning is not explicitly addressed in the Indian Constitution. However, the Indian flag is protected by the Constitution as a national emblem.

The need “to respect the national flag and the national anthem” is included in the list of basic obligations of every citizen in Article 51A of the Constitution of India. This clause stresses the need of safeguarding national symbols such as the flag.

Disrespectful behaviour towards the national flag is explicitly prohibited by statute in the United Kingdom under the Prevention of Insults to National Honour Act, 1971. Punishment under the Act is provided for those who burn the Indian national flag or otherwise desecrate a national symbol or object of pride.

Any act that insults the Indian national flag or any item of national honour is punishable by imprisonment for up to three years, a fine, or both under the Prevention of Insults to National Honour Act, 1971. Putting an inscription on the Indian flag, using it as a drapery, stomping on it or otherwise defiling it with disdain or disrespect, and flying it upside down are all examples of disrespect listed in the act.

Guidelines for the correct display and usage of the national flag are provided in both the Flag Code of India, 2002 and the Prevention of Insults to National Honour Act. The flag may not be flown at funerals or worn or displayed on clothes or other personal objects, since they are specifically forbidden by the code.

The Flag Code of India, 2002, also details how citizens should treat the flag while flying it. The flag may not be flown at funerals or worn or displayed on clothes or other personal objects, since they are specifically forbidden by the code. The proper care and keeping of the flag are also outlined in this document.

Burning the national flag is not a basic right and may be prohibited by legislation in India, according to the country’s highest court. Naveen Jindal v. Union of India (2004) established that burning the national flag is not a form of free expression allowed by the Indian Constitution and supported the legality of the Prevention of Insults to National Honour Act.

CULTURAL IMPACT OF FLAG DESECRATION

A prominent emblem of India’s freedom fight and its unity in diversity is the national flag. The flag symbolises the values of the Indian independence movement, such as equality, justice, and nonviolence. Because of this, it’s probable that any act of flag desecration or burning would be seen as a slap in the face to the country’s beliefs and history. It’s possible that flags have the same or equivalent cultural and historical importance in other nations and civilizations, making any act of flag desecration or burning insulting or objectionable. It’s important to keep in mind, however, that cultural views on flag burning and desecration may vary greatly depending on context, and that what’s seen an acceptable form of protest in one society may be deemed insulting in another.

In sum, flag disrespect and burning are nuanced problems that may have deep emotional and cultural weight for many individuals. When acting in any kind of protest or expression, it is essential to comprehend the cultural setting of these activities and to respect the views and values of others.

CONCLUSION

There are strong reasons on both sides of the subject of flag disrespect and burning. Opponents say it’s insulting and disloyal, while proponents say it’s a form of free speech and a method to voice disagreement and protest. The right to free expression is a cornerstone of democratic society, and this must be acknowledged regardless of one’s own views on the matter. The right to free speech involves the ability to voice controversial or unpopular views without fear of retaliation.

However, we must not overlook the profound meaning that the American flag has for many individuals. The flag represents honour and sacrifice to those who have served or lost loved ones in the military. An insult to these ideals is the burning or desecration of the flag.

The issue over flag burning ultimately reflects the contradictions between personal liberties and societal norms that are inherent in every democratic system. There is no simple solution to this problem, but we must keep talking openly and honestly about our shared ideals as Americans.