Reiterating that Article 370 that guarantees special status to Jammu and Kashmir in the Constitution cannot be abrogated, repealed or even amended, a Jammu and Kashmir high court order has directed the state government to hoist the state flag, along with the national flag, on all official buildings and vehicles of constitutional authorities.
The order said, “It is obligatory on every citizen as well as on every constitutional authority to maintain the sanctity of, and respect, the state flag in terms of the constitutional provisions and the Jammu and Kashmir Prevention of Insult to State Honours Act, 1979.” The high court said anybody who contravened or went against the stated constitutional position with regard to the hoisting of the state flag would invite action under law.
The flag of the state is 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 a handle facing the strips. Section 144 of the state constitution makes it obligatory to hoist the state flag along with the national flag on all government buildings which have offices of constitutional authorities as well as on official vehicles.
The judgment that came on Saturday termed the amendment to create the Jammu and Kashmir governor’s post as unconstitutional and against the “basic structure of the constitution”.
Reiterating unique position
Reiterating that Jammu and Kashmir is the only state in the Union that has its own flag adopted by its constituent assembly and provided in its constitution, the court maintained, “The state flag is one of the attributes of constitutional autonomy or limited or residual sovereignty, by whatever name we call it, enjoyed by the state of Jammu and Kashmir.
“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. Therefore, this sanctity and position has to be maintained at all costs. Its non-hoisting along with the Union flag amounts to insult to the flag as per the provisions of the Jammu and Kashmir Prevention of Insult to State Honours Act.
“There is no need to issue any executive instructions/circular/government order impressing upon the constitutional authorities to honour it when the fact of the matter is that everybody is expected to know the legal position on the issue as ignorance of law is no excuse.”
The court, however, maintained that it is not obligatory for the state to celebrate November 17 as Republic Day of the state.
The court said, “Constitutional autonomy guaranteed to the state is “basic structure” of state constitution and beyond amending power available to the state legislature under Section 147 of the constitution.” “One of the important facets of the autonomy enjoyed by the state and, therefore, “basic structure” of the state constitution as recommended by basic principles committee, was the “elected head of state”. Section 26 of constitution provided that the head of the state (Sadr-e-Riyasat) shall be elected in the manner provided under Section 27. The head of the state as provided under Section 27 was to be elected by people of the state through their representatives in state legislatures,” Justice Hasnain Masoodi observed in his judgment while disposing a writ petition filed by civilian Abdul Qayoom Khan.
The petitioner had said that the state flag was not being hoisted on buildings housing offices of constitutional authorities and on official cars. The petition, which was submitted in November 2013, had said that it amounted to “contempt of the flag and breach of law”. The petitioner had also stated that the Jammu and Kashmir government was not celebrating the day the constituent assembly of the state adopted the state constitution.
The state government, on March 12 this year, had issued a circular asking constitutional authorities to hoist the state flag along with the Tricolour on government buildings and vehicles. The move, however, hadn’t gone down well with the coalition partner, the BJP.
The Mufti Sayeed-led PDP-BJP coalition government had later withdrawn the circular saying, “The mandate and duty is clear according to Section 144 of the state constitution and all concerned need not be reminded of their duty.”
The high court order has restored the March circular by the government. Not following the order had been declared as “an insult to the flag”.