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Explained: Flagging a problem

Muzamil Jaleel explains the facts and context of the controversy over the flag of Jammu & Kashmir.

Written by Muzamil Jaleel |
Updated: March 16, 2015 9:13:04 am
 Jammu & Kashmir flag, Jammu Kashmir government, Jammu Kashmir news, Jammu Kashmir, PDP BJP alliance,  Masarat Alam, Mufti Mohammad Sayeed, Jammu Kashmir government, PDP, BJP, Jammu Kashmir news, india news J&K has a separate constitution, adopted on November 17, 1956,

Muzamil Jaleel explains the facts and context of the controversy over the flag of Jammu & Kashmir, and the likely political fallout of the Mufti government’s backtracking

Who issued the ‘flag’ circular? Under what circumstances? What did the circular say?
It was issued on March 12 by M A Bukhari, Commissioner/Secretary, General Administration Department (GAD) of the government of Jammu & Kashmir. It said that the J&K flag “shall always be hoisted jointly (with the national flag) on the buildings housing constitutional institutions and shall be used on official cars of constitutional authorities”, and failure to do so would violate the J&K Prevention of Insult to State Honour Act, 1979.

Sources say the circular was issued in the backdrop of a PIL filed by Abdul Qayoom Khan, a former Chief Conservator of Forests, before the High Court in March 2014. “I sought a direction to the state that November 17, the day J&K adopted its constitution in 1956, should be celebrated as republic day, and that all constitutional authorities should use the state flag on official buildings and cars,” Khan told The Indian Express. The court gave the state four weeks to respond, but it did not, and in October, he filed a civil miscellaneous petition, or CMP, Khan said. The case was last heard on November 15. Meanwhile, Khan joined the PDP, but resigned after it joined hands with the BJP.

In fact, there is nothing new or extraordinary in the circular issued by the GAD, which comes directly under the Chief Minister. In 2007, the state assembly had passed an amendment moved by a National Conference legislator, making the State Honour law tougher – failure to display the state flag with due respect now attracts a year in jail and a fine.

Why was the circular then withdrawn within 24 hours?
The withdrawal notice, issued on March 13, said the circular had been issued without approval from “the competent authority”. But it is likely the withdrawal was a political decision. BJP is ideologically opposed to the special status of J&K. Its stated position is in favour of only one constitution and flag for all of India. Sources say the Mufti government acted under pressure from both BJP and RSS. It has had to also abandon its plans to release political prisoners in the face of intense anger from the BJP — and all-round outrage in Parliament — over the release of separatist leader Masarat Alam.

Where does the separate flag stand legally?
J&K has a separate constitution, adopted on November 17, 1956, and the state’s link to the Centre is through Article 370 of the Indian constitution. Almost all constitutional authorities in J&K – including the Governor, council of ministers, legislators, Speaker, High Court judges, etc. – are creations of, and function under the constitution of J&K. Article 144 of the J&K constitution describes the flag of the state. The 1952 Delhi Agreement between J&K and the Union of India says that “the Union Government agreed that the State should have its own flag in addition to the Union flag, but 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”.

What political fallout is the Mufti government’s decision to withdraw the circular likely to have?
There are apprehensions in the Kashmir Valley and Muslim majority Chenab valley and Pir Panjal regions of Jammu that the BJP is working to dismantle the special status of J&K and repeal its constitution. The value of the J&K flag is symbolic, but the Mufti government’s backtracking is seen as a step towards abrogation of the State Subject law provided in the J&K constitution, which is part of the long-term agenda of the RSS-BJP. This law bars outsiders from owning property, getting government jobs and voting in the state assembly elections. The NC and Independent lawmakers from Kashmir are likely to bring up the issue in the assembly after it convenes on March 18; the separatists are likely to flog it as well.

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