J&K State Flag never had Same Constitutional Position as Union Flag (Indian Nation Flag)

𝐋𝐞𝐭 𝐩𝐫𝐨𝐜𝐞𝐬𝐬 𝐨𝐟 𝐮𝐩𝐫𝐨𝐨𝐭𝐢𝐧𝐠 𝐦𝐲𝐭𝐡𝐬 𝐚𝐛𝐨𝐮𝐭 𝐢𝐝𝐞𝐧𝐭𝐢𝐭𝐢𝐞𝐬 𝐨𝐟 𝐞𝐫𝐬𝐭𝐰𝐡𝐢𝐥𝐞 𝐈𝐧𝐝𝐢𝐚𝐧 𝐬𝐭𝐚𝐭𝐞 𝐨𝐟 𝐉&𝐊 & 𝐁𝐡𝐚𝐫𝐚𝐭 𝐭𝐚𝐤𝐞 𝐚 𝐬𝐭𝐚𝐫𝐭

DAYA SAGAR

‘J&K’ has suffered a lot over more than last 7 decades even after having landed in a sovereign democratic republican environment as a state of Union of India. Inspite of all the governments having sworn on oath to work for peace & stability still the unfair turbulences have consumed major bulk of their energies / efforts. For all this the reasons more lie in the fact that the Prince of the erstwhile Princely state of J&K had delayed the accession of state with India for more than two months till the state was attacked by Pakistan openly from Kashmir valley side on 22nd Oct 1947 ( hoping that Muslim majority Valley will openly support “Pakistani” invasion but that did not happen at all). Ofcourse the Prince of J&K did sign the same text of Instrument of Accession as was signed by other princes still the delayed accession, the circumstances under which Maharaja of J&K acceded to India, the invaders do not receiving any support from local population of Kashmir Valley & the reasons for delay as were explained by Maharaja in writing did place the socio political environment in J&K at a ‘particular’ pedestal. After 1947 no doubt the foreign agencies and a few local elements carrying anti India ideologies too have been working to emotionally exploit the local people in the name of regionalism / communalism / historical notes but there have been some political wrongs expressed / supported by even those leaderships which did not disown J&K as a state of Union of India/ who did not raise any questions on the truthfully total accession of the erstwhile princely state of J&K to India but instead have been highlighting the failures of the Pakistani invasion from Kashmir Valley side /delays in accession and demography of J&K promoting ‘sich’ theories on the accession of J&K to India due to which some myths had taken roots in the lanes of J&K (particularly Kashmir Valley) and such political parties nursed their political plans with those myths.
The myths had/have been like (i) J&K had Constitutionally a special Status in India and Art370 of Constitution of India is the only link (bridge) ( between J&K and India (ii) It was due to special status that J&K had a separate / own Constitution ), (iii) No law made by Parliament of India is applicable to J&K unless that was accepted by J&K Legislature / Government and (iv) It was due to special status that J&K had a separate /own Flag.
Since no adequate counter corrections / explanations were given by Indian political leadership in power or out of power to the myths cultivated by local political leaders ( mostly taking lead from Kashmir valley ) the myths like J&K having a special status in Constitution of India did set firm and emotional roots in J&K. No doubt it was on 11-03-2015 that in reply to Rajya Sabha starred Q*138 ( whether it is a fact that through Article 370, the Constitution gives special status to Jammu and Kashmir? ) Government of India had in a written reply informed the Nation that J&K State of Indian Union has no any special status as per Constitution of India{(a): In the Constitution of India, there is no mention of ‘Special Status to Jammu and Kashmir’. Article 370 provides for ‘Temporary provisions with respect to the State of Jammu and Kashmir’.) but even after that many from the government / many in the media / many political leaders have been saying that J&K ‘has’ special status and many media had been / is reporting that with the issue C.O 272 on 5 August 2019 and C.O 273 on 6 August on 2019 “special status” of J&K has been taken away. Such inferences if are still drawn the emotional links that the myths had earlier created are surely going to be hurt ,which will feel un happy on losing so called special status. So all must very carefully express opinions on J&K affairs particular with respect to what happened in August 2019. The real facts in simple language have to be taken to common man of J&K ( even all over India ) with patience and calm , particularly in relation the myths about special status / Art370/ separate constitution/ separate flag so that the process initiated for return of peace & stability in J&K is achieved early .
It was on 05-08-2019 that the Constitution (Application to Jammu and Kashmir ) order 2019 C.O 272 of date 05-08-2019 was made by the President of India under the provisions of Art370(1) of Constitution of India to supersede Constitution (Application to J&K) Order,1954, it was on 06-08-2019 that President of India issued Presidential Notification under C.O.273 of 06-08-2019 making use of Art 370(3) to modify Art-370 , Bill No. XXIX of 2019 -The Jammu and Kashmir Reorganisation Bill, 2019 was passed by Parliament of India on 6th August 2019 (Act No: 34 of 2019 assented by President of India on 09-08-2019) and the same are under judicial review before a 5 Judge Constitution Bench of Court of India.
The five Judge Constitution Bench (Chief Justice D.Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R Gavai & Surya Kant ) otherwise had on 12-07-2023 while passing several procedural directions and ordering that hearing on the clutch of petitions will be held on a day-to-day basis w.e.f 2nd August 2023 except on Mondays and Fridays (days for hearing miscellaneous matters in the apex court) too has said that Centre’s affidavit filed on 10-07-2023 (Monday) with regard to the conditions prevailing in Jammu and Kashmir after the August 5, 2019 notification will have no bearing on the constitutional issue to be adjudicated by the five-judge bench. Good that no goods or bads, no commitments or promises, no historical events or opinions earlier to 1947 are made part of proceeding which could otherwise push socio political local environment into unwanted emotional conflicts / controversies / political traits. So let me not discuss the technicalities/ other issues related to above here and leave that to the wisdom of supreme court.
Let me take the liberty to just discuss here the “myth” of J&K having a Separate Flag. The ‘position’ /status of State Flag with respect to National Flag / Union Flag is neither described in the Constitution of India nor in Section-144 of the Constitution of Indian State of J&K(The Flag of the State shall be rectangular in shape and red in colour with three equidistant white vertical strips of equal width next to the staff and a white plough in the middle with handle facing the strips ).Any how a J&K state government circular of 12th March 2015 had made a mention of Delhi Agreement of 1952 wrt state flag . Without going into the constitutional and statutory validities of the said Delhi Agreement of 1952, let us have a look at para / Clause -IV of the said agreement that does have some indirect reference as regards the ‘position’/ status of the State flag viz viz National / Union Flag . The Delhi agreement at para / clause -IV 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 said ‘State Flag’ did not have the same (equal to) position ( constitutional status ) as the Union Flag / National Flag has could not be named as separate state flag. Delhi agreement said 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 J&K having a Separate flag of own has been a myth but it was not well disposed /contested by any national party or officially . Such misconceptions of earlier times should not be allowed to flow even now and surely should be very patiently and humbly explained to dismantle their roots so that no one feels having lost anything special after 5 August 2019.
(The author is a Sr Journalist &analyst of J&K affairs [email protected]).