Intro: Is it fair to opine that State Flag has same position as Union Flag under Indian Constitution?
Some political parties hold a firm belief that their political survival rests only on controversies, and that too on the controversies that could cast shadows on nationality and territorial identities of Indian state of Jammu and Kashmir. Since all these years such opinion makers have remained uncontested, therefore as regards J&K, in the present day environment one would surely find it difficult to draw lines between the mainstream and separatist ideologies. A good number of daily news papers in J&K refer to the Pakistan occupied areas of Indian state of Jammu and Kashmir as Pakistan administered ‘Kashmir’, and the locals and the Central Government has been taking all this quite casually.
After People’s Democratic Party (PDP) joined hands with BJP to form Government in Jammu and Kashmir questions are being raised on the truthfulness of BJP-PDP alliance by National Conference as well as Congress. Mufti Mohammed Sayeed too has been quoted speaking in the J&K Legislative Council on 23 March as: “I have earlier said that PDP-BJP alliance was equivalent to connecting North Pole and South Pole but I took it as an opportunity to end the differences between the two regions of the State.”
PDP ‘leadership’ had said that the PDP-BJP coming together is due to people having given a fractured mandate in 2014 elections to J&K Assembly, and their ‘agenda for alliance’(the Common Minimum Programme) targets only development and peaceful coexistence of the three regions of J&K state. But unfortunately, within less than 2 weeks of swearing in, the PDP leadership has given way to some serious controversies.
The controversy raised by the J&K chief minister on ‘day one’ by crediting Pakistan, militants and separatists for the smooth conduct of the state assembly polls had not even settled down and the PDP-led government stepped into another controversy on 12th March on the issue of ‘ Hoisting of state flag’ Vs National flag. One is tempted to ask what could be the motivation for such an act that is so against the development agenda of BJP-PDP alliance.
The brief in Circular No. 13-GAD of 2015, dated 12.03.2015– in Hoisting of State Flag- issued by PDP government among other things said, “As per the Constitution of Jammu and Kashmir and the Delhi Agreement of 1952 and keeping in view the historical background, the State Flag has the same sanctity and position as the Union Flag has under the Indian Constitution and other statutory provisions…. All the Constitutional authorities are enjoined upon to maintain the sanctity of the State Flag, at all costs, as is being done in respect of the Union Flag.” The use of term ‘position’ in the circular surely has reference to ‘status. The ‘position’/status of State Flag with respect to National Flag/Union Flag is neither described in the Constitution of India nor Section-144 of the Constitution of Indian State of J&K give the description of the flag of the State.
The J&K state government circular issued on 12 March also makes mention of Delhi Agreement of 1952. The said agreement does have some indirect reference as regards the ‘position’/ status of the State flag vis-a-vis National / Union Flag .Without going into the constitutional and statutory validities of the said Delhi Agreement of 1952, let us have a look at its para / clause IV that says, “ ….it was agreed by the State Government that the State flag would not be a rival of the Union flag; it was also recognised that the Union flag should have the same status and position in Jammu and Kashmir as in the rest of India….”. Therefore, even as per Delhi Agreement of 1952 the State Flag does not have the same (equal to) position (constitutional status) as the Union Flag / National Flag. Delhi agreement says that state flag ‘would not be a rival of the Union Flag’ and that the Union flag should have the same status and position in Jammu and Kashmir as in the rest of India, so using the phrase ‘same position’ in the circular of 12th March is surely not constitutionally wise.
Of course, there is nothing wrong in impressing upon all to observe the sanctity of flag of the state (J&K). But making a comparative reference to Union Flag/National flag while referring to the position (status) of the state flag (stating that State Flag has the same position as the Union Flag ) could even be questioned for the motive behind making such like reference.
It will not be out of place to mention here that it was also on 25th September 2013 that based on an official handout it was reported in media that then J&K Chief Minister Omar Abdullah too had opined while talking to Ambassador Joao Cravinho Head of a Delegation of the European Union that J&K state has a special status, its own constitution and the ‘state flag’. One of the key indicator that emerges from such actions points towards the political compulsions before parties like PDP for sustaining their electoral game plans in the ‘ideologically’ polluted political environment that has been allowed to grow in J&K (particularly Kashmir Valley) by earlier governments at the cost of the faith that the local innocent people have been, all these years, holding in their leadership.
When the flag issue came into notice, the said circular was though later withdrawn by issuing another circular under number 14 -GAD of 2015 Dated: 13-03-2015, but the agitating message that had already been sent cannot be settled so easily. When someone ventures into saying that the State Flag’s sanctity is in power with the Indian National Flag, the act cannot be taken so casually since the ‘separatist’ elements are always waiting to drag the issues the other way.
What raises question is the need behind Mufti’s hurry to issue such a circular when the first and foremost need of the day was to fight out the separatists. Therefore there is an urgent need for the Government of India as well as the State Government to make a statement on the controversy that has been shaped on the ‘position’ of National flag by J&K Government Circular of 12.03.2015 indirectly touching very sensitive issues related to nationalities and sovereignties.
Reports did appear that as per official sources the circular was issued without approval of the competent authority and hence was withdrawn by issuing another circular. Yet, the question that remains unanswered is what administrative action has been taken by PDP-BJP Government against the ‘defaulting’ officer ?
Daya Sagar (The writer is a Senior Journalist & a
social activist )