Karnataka flag row: A strong nation caters to regional aspirations

The Karnataka government formed a committee last week to consider the demand of some activists for an official state flag. There is opposition to such a decision on two different grounds: one is political, the other is federal-constitutional.

The political opposition in the state makes the familiar point: that the Siddaramaiah government is trying to fan regional sentiment with the state Assembly election less than a year away. The argument is that it is a convenient ruse for the Congress to cover up its drawbacks. There may be truth in this argument. But then, which party in power does not try to take steps to bolster its political prospects when election is round the corner?

The larger question is of greater importance: in the eventuality of the Karnataka state opting for a flag of its own, does that militate against the bigger concerns of Indian nationalism?

Let us first consider the constitutional conundrum – does the Indian Constitution allow the constituent states to have flags of their own, just as the states in the USA? Well, if the Constitution of India had put it down explicitly either way – whether states will or will not have the authority to create an official flag of their own – then the debate would not arise. Just because the Indian Constitution is silent on the matter, a controversy has risen about the states’ jurisdiction.

Mostly, legal experts hold that there is no constitutional bar for states to have their own flags. Karnataka’s former advocate general Ravi Verma Kumar has said: “the Constitution provides for states’ supremacy in their own sphere and even a seven-judge Supreme Court bench has upheld this. The flag code also has no restrictions on the matter.”

It has been constitutionally guaranteed, and judicially upheld, that the Government of India and the governments of the states have been given independent juridical status, each having been vested with plenary powers in both legislative and executive fields of legislation and administration. The Constitution provides for A Union List (List I) that enumerates the exclusive powers of the Centre and a State List (List II) that clearly lays out the jurisdiction of the states. There is a “Concurrent List” too which defines concurrent jurisdiction for both the union and the states, with the proviso that in case of a conflict between the two, the Union’s will prevail.

A logical extension of this provision is that any subject not mentioned in any of the three lists would be subject to the Concurrent List, in which case the decision of the Union will prevail over that of the state, in case of a conflict between the two.

Legal experts say that if the Karnataka government goes ahead with the decision of a state flag, then it would not trespass the constitutional Lakshman rekha so long as the Centre does not come up with a legislation prohibiting the states from creating their own flags. As is clear, the Union’s decision will prevail over that of the state in case of a conflict between the two legislations pertaining to a subject not mentioned in any of the Lists enumerated in the Constitution.

Of course, in such an eventuality, the legal tenability of the decision of both the Union and the state would be subject to the judicial review by the Supreme Court of India.

Some questions have been raised about the nature of our federal set-up. There is a view that the United States of America is a ‘coming-together’ federation where the states are free not only to have their flags but also their own Constitution. But India is a typical example of a ‘holding-together’ federation where one-nation-one-Constitution-one flag rule must prevail.

But, if that is the case, then that sentiment did not reflect in the provisions of The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971. Nor does it come out explicitly in the Flag Code of India that brought together in 2002 all laws, conventions, practices and instructions regarding the display of the national flag.

The Code, while stipulating the rules regarding the display of the national flag, clearly states that when carried in a procession or parade with ‘another flag or flags’, the national flag must be on the marching right or alone in the centre at the front.

It must be noted this rule is not with regard to the display of the Indian national flag along with the national flags of other countries. The Flag Code clearly enumerates separate provisions regarding the unfurling of national flags of different countries along with our national flag on the occasion of bilateral or multilateral conventions.

Clearly, the Flag Code of India entertains the possibility of other flags being hoisted with the national flag in the Indian domestic setting and sets out the rules of doing so.

If the legal-constitutional framework of India does not prohibit the creation of the state flag (even the Union Home Ministry spokesperson has put it on record that “legally there is no provision either for providing or prohibiting a separate flag for any state”), then the only question that need to be addressed is the emotive concern of nationalism.

Many Indians feel that a state flag for Karnataka would induce other states to make similar demand and, as some extreme nationalists aver, that would sow the seeds of regional chauvinism and possibly secession. But such fears are grossly misplaced. The foundations of Indian federalism and its co-relation with Indian nationalism have weathered worst storms in the last decades when the Tamil secessionist demand was successfully contained by the policy of regional accommodation (Punjab’s was a special case where religious fanaticism combined with regional separatism and that had to be dealt by force).

We can strengthen the Indian nationhood, and not weaken it, by catering to the regional aspirations of the states and their people.