State flag can not be equivalent to National Flag in status /position

02 Jan 2016 11:31:40

As per Delhi Agreement State Flag of J&K is not the rival of Union Flag in Status and Position

By Daya Sagar (Eminent Journalist & a social activist)

Some political parties have been holding and still  hold a firm belief that their political survival rests only on controversies , and that too on  the controversies that could cast shadows even on the nationality and territorial identities of Indian state of Jammu & Kashmir. All these years such opinion makers have remained uncontested, therefore, in the present day environment one would surely find it difficult to even draw lines between the mainstream and separatist ideologies. Mufti Mohammed Sayed too has been quoted as having said while speaking even in the J&K Legislative Council on 23  March 2015 ::: “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,”

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 has

 The flairs of the controversy raised by the Chief Minister on ‘day one’ itself  as regards ‘unprecedented mass turnover’ of voters during the 2014  J&K legislative assembly elections  had not even settled down when the PDP lead government stepped into another controversy on 12th March,  ‘ Hoisting of state flag’ vs National flag. One would ask what was the emergency for ‘PDP’ lead Government for such expressions and such actions much beyond outside any truthful development agenda for ‘alliance’.

To be brief a Circular No. 13-GAD of 2015, dated 12.03.2015 -  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  ofState Flag with respect to  National Flag / Union Flag is neither  described in the Constitution of India nor in Section-144  of the Section-144 of Constitution of Indian State of J&K that describes the flag of the State .

The state government circular of 12th March also made mention of Delhi Agreement of 1952. The  said agreement does have some indirect reference  as regards the ‘position’/ status of the State flag vizviz 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, but for historical reasons connected with the freedom struggle in the State, the need for continuance of the State flag was recognised… ..” .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 has. No doubt the sanctity of the State  flag has to be recongnised. 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 was  surely not constitutionally wise and may be that agitated some minds.

Ofcourse  thereis  nothing wrong  in impressing upon all to observe the sanctity of the  flag of the State ( J&K) and  adhering to provisions of The  Jammu and Kashmir Prevention of Insult to State Honors Act, 1979.  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  be what made some minds to  agitate in March 2015.

 No doubt circular No. 13-GAD of 2015, dated 12.03.2015  was immediately withdrawn by issuing another circular under number 14 -GAD of 2015 Dated: 13-03-2015  (  The Circular No.13-GAD of 2015, dated 12.03.2015 issued under endorsement No.GAD(L)F-51/2014, dated 12.03.2015, is hereby withdrawn  ) . But the circular dated 13 March didnot  mention the reasons for  withdrawal  of earlier circular. Hence  the agitating messages sent were  difficult to settle since the withdrawal of circular without giving explanation for withdrawal surely could make some people to think that maintaining sanctity and hoisting State flag of  J&K is not the must .And surely the same might have been the reason when  a petitioner aggrieved with Circular No.14-GAD of 2015 dated 13thMarch 2015  filed  writ petition,  OWP no.1012/2015 in Hon’ble J&K HC insisting that Circular No.14-GAD of 2015 dated 13th March 2015  was  violative of Section 144 of  Constitution of Jammu and Kashmir, inasmuch as the Circular, in essence, permits non-hoisting of the Flag of the State and frees Constitutional authorities of duty to maintain sanctity of the Flag.So, it could be said that had the withdrawal circular of 13 March been a well speaking circular ,may be the writ petition would not have been filed. And ofcourse Government of India as well as the State Government should have simultaneously made a statement regarding the  erroneously made reference of the ‘position’/ status of  union flag viz State flag  in  Government Circular of 12.03.2015 that indirectly also touched  very sensitive  issues related to nationalities and sovereignties.

When some one ventures into also referring the Indian National Flag while addressing  any controversy  as regards State Flag  in J&K ( a state already under ideological turmoil ) where the ‘separatist’ elements are always waiting to drag the issues their  way,  the act of withdrawing the circular without mentioning reasons could not be taken that  lightly. Circular No.13-GAD of 2015 dated 12th March 2015 may not have Statutory flavour, yet circular was passed to carry out mandate of Section 144 of  Constitution of Jammu and Kashmir therefore  it should  not have been withdrawn in  so casual manner just a day after in a way conveying a message that even the Constitutional mandate and sanctity of state flag was not required to be adhered to.  Hon’ble single bench of J&K High Court has  on 18th December  allowed the  Writ petition no.1012/2015 and set aside Circular No.14-GAD of 2015 dated 13th March 2015  and hence restoring circular No.13-GAD of 2015 dated 12th March 2015 directing that  Respondents and all Constitutional Authorities shall adhere to and abide by mandate and spirit of Section 144 of J&K Constitution and J&K Prevention of Insult to State Honour Act, 1979 and Circular No.13-GAD of 2015 dated 12th March 2015.No doubt the part of the circular dated 12 March that talks of same  position ( equal) for state flag as that of Union flag is still questionable and has not been addressed to in the judgement although the judgment refers to Delhi Agreement as well.

So under the circumstances Government of India and State Governments must make the position clear regarding the Position / Status of the Union flag vizviz State flag and ensure that no one is allowed to push the subject into more controversies. May be had the misquotes on position /statusand  casual drafts been handled by the governments in a wise manner the petitions would not have come before the Hon’ble HC.

One of the  key indicator that emerges from such actions  and lapses of the political leaderships points towards the political compulsions before parties in the ‘ideologically’ polluted political environment   that has been allowed to grow in J&K.

Any how there should not be any doubt about maintaining the sanctity of state honors /symbols.

J&K is a state of the Union and hence state flag ( state symbol ) does deserve honor but it can not be equivalent or rival of Union flag in status /position. More so Article -1 and Article-370 of Constitution of India apply to J&K in totality without any scope for any clarifications and explanations. In case any one thinks that  Artilce-1 applies through Art-370, such  opinion is miscarried.

      . ( * Daya Sagar is a Sr Journalist & a social activist  [email protected] 9419796096)

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