"Is there any provision in the Constitution
that prohibits a state from having a flag?” Sri. Siddaramaiah, Chief
Minister of Karnataka is supposed to have asked.
The Chief Minister was indeed right is posing that
question rhetorically. Strictly speaking, there is no reference to the issue of
“State Flags”. It is just that he forgot that there is neither “any provision in the Constitution that
permits a state to have a flag”.
So then, if the Constitution makes no express provision,
can a State Government assume that it has the sanction/authority to declare a
State flag?
The one-word, emphatic answer is: No!
Here’s why.
Constitutional Provisions and Interpretation
Firstly, let us start with the
relevant portion of the only Article in the main Parts of the Constitution of India, namely, Article 51A that talks about "flags". It states:
51A. It shall be the duty of every citizen of India—
(a)
to abide by the Constitution and respect its ideals
and institutions, the National Flag and the National Anthem;
(b)
…
A plain reading of this provision would make it clear that
had the legislative intent been to endow various States with the power/authority
to have “State Flags” and “State Anthems”, it would have surely mentioned it expressly
in the list of “fundamental duties”. It is indeed inconceivable that
Parliament, in its collective wisdom, would have, by implication, declared either
that respecting State flags and anthems was not a duty of every citizen or that
disrespecting the same was acceptable/permissible constitutionally.
Further, “expressio unius est exclusio alterius”
is a well-known Latin maxim, which is a principle used in statutory
construction. It means: “when one or more
things of a class are expressly mentioned, others of the same class are
excluded.” If “national and state flags and anthems” are considered as a class, then
the exclusion of “state flags and anthems” from Article 51A clearly indicates
that our law-makers never envisaged a scenario of states having official flags and anthems.
Indeed, a US Court, elaborating on “silence in statutory
enactments” of Congress, aptly summarised as follows:
“…not every silence is pregnant. In some cases, Congress intends silence
to rule out a particular statutory application, while in others Congress’
silence signifies merely an expectation that nothing more need be said in order
to effectuate the relevant legislative objective. In still other instances,
silence may reflect the fact that Congress has not considered an issue at all…”
Thus, the "silence" of our parliamentarians in Article 51A, ‘intentional’ or otherwise, can be only interpreted
to imply states are either not to have or not expected to have their own “State
flags and anthems”.
Further, if “rule of law” and “paramountcy of the
Constitution” are to be upheld, interpretation of statute has to be strict and
literal, particularly with regards to matters concerning our nationhood and
national “unity and integrity”.
“Division of Powers”
Secondly, none of the lists, in the Seventh Schedule under
Article 246– namely, the Union, State and Concurrent Lists– in the
constitutional scheme of “Division of Powers between the Union and States”, makes
reference to the vesting of law-making powers for flags. Yet, Item 97 of the
Union List, expressly empowers the Union to make laws on “any other matter not
enumerated in List II or List III…” i.e., the State and Concurrent Lists
respectively.
Therefore, all “residual powers” under the Constitution lie
with the Union, one of the reasons [which have been detailed in an earlier blog-post] why India is held to be “a
unitary state with federal characteristics.”
What is in a flag?
Thirdly, some argue that since many social, religious,
cultural and educational organisations are allowed to have their own flags, it
is kosher for states too to have flags as a symbol of cultural and linguistic
pride.
The analogy is flawed and untenable in more ways than one. To
begin with, private outfits with flags are neither public agencies/entities nor
constitutional bodies/authorities. On top, they are not funded by the state
exchequer; neither are they part of government. Besides, flags of these
private organisations do not get unfurled and hoisted at official events
and functions.
Finally, others argue: “There is already a flag that is waved during Kannada Rajyotsava celebrations. So, what is the big deal if there
is an official state flag?”
True. But then, hoisting the informal “red-yellow” Kannada
flag on government premises is not mandatory. An official flag would have to be
necessarily hoisted during official events and government functions. Other
states too may want to designate official flags, which would raise questions
about protocol to be followed.
And what if bigots and fringe elements in one state are tempted into burning
flags of other states during protests and agitations? With law and order being
a state subject, would showing disrespect to the flag of another state be permitted and held to be not an offence?
Given the inherent complexities, the official adoption of state flags
would require an overarching law to be enacted at the centre. If our state
government is so desperate to designate an official flag, then, it must necessarily
seek to have Article 51A (if not the Seventh Schedule) of the Constitution
amended by the Union.
Clearly, the idea of "official state flags" needs to be thought through thoroughly. There is the additional risk of linguistic and regional polarisation and divisiveness in the country arising out of any such move. A hasty decision can only hurt and haunt us in the future.
Closing Remarks
My grouse though against this move,
divisive and dubious, if not devious, is as follows:
If successive state governments never felt it necessary to
have a flag to further Kannada pride or cultural identity all these years, why
is the issue being raked up now?
What added advantage does an “official flag” bring to us that
the existing “unofficial flag” does not?
Is an official flag the only way to express linguistic pride
and fervor?
Well, I do not think so.
