December,30,2015: Fresh High Court directive to hoist State flag on all official buildings and vehicles of Jammu and Kashmir has virtually punctured well known slogan “Ek Vidhan Ek Nishaan” of BJP, leaving the party red faced.
After compromising its position on Article 370, BJP leadership has to find out the middle ground now on it’s well known slogan “Ek Vidhaan Ek Nishaan”.
In its fresh directive the High court according to reports said that Jammu and Kashmir enjoins a special position in India and that Article 370 is permanent and can’t be abrogated, repealed or amended and directed the State Government to hoist the State flag on all official buildings and vehicles of constitutional authorities.
The Jammu and Kashmir High Court has directed the government to hoist the state flag on all official buildings and vehicles of constitutional authorities.
The judgment is a setback to Mufti Mohammad Sayeed-led PDP-BJP government that had withdrawn a circular asking the constitutional authorities to respect the state flag and hoist it on their official cars.
“(The) respondents (state government) and all constitutional authorities shall adhere to and abide by mandate and spirit of Section 144, Constitution of Jammu and Kashmir, J&K Prevention of Insult to State Honour Act 1979,” Justice Hasnain Masoodi directed while disposing a writ petition filed by a civilian Abdul Qayoom Khan. “Such adherence, obviously, is to include hoisting of state flag on the buildings housing offices of constitutional authorities and on vehicles used by such authorities.”
Most BJP legislators in the state did not hoist the state flag on their official cars or offices.
In March this year, the J&K government had issued a circular saying all “constitutional authorities are enjoined upon to maintain the sanctity of the state flag, at all costs, as is being done in respect of the union flag”. The circular had directed that the state flag shall “always be hoisted jointly on the buildings housing constitutional institutions and shall be used on the official cars of constitutional authorities.” However, a day later, the government withdrew the circular apparently under pressure from the BJP.
J&K High Court has observed that the Article 370 is a “permanent” provision of the Constitution and that it cannot be “abrogated, repealed or even amended”. The court has also described Article 35A as one “giving protection to existing laws”.
“The Constituent Assembly (of 1957) is conferred power to recommend to the President that Article 370 be declared to cease to be operative or operate only with the exceptions and modifications. The Constituent Assembly (however) did not make such a recommendation before its dissolution on January 25th, 1957.” The high court’s observations assume significance in the backdrop of petitions challenging Article 370 (that gives special status to Jammu and Kashmir) and Article 35A.
In his judgment, Justice Masoodi has reiterated that Jammu and Kashmir enjoins a special position in India and that Article 370 is permanent and can’t be abrogated, repealed or amended.
“The state flag is one of the attributes of constitutional autonomy or limited or residual sovereignty — by whatever names we call it — enjoined by the state of Jammu and Kashmir,” Justice Masoodi observed in his judgment.
“Jammu and Kashmir while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other princely states that signed Instrument of Accession with Dominion of India,” the court observed. “The state continues to enjoy special status to the extent of limited sovereignty retained by the state. The limited sovereignty or special status stands guaranteed under Article 370 of the Constitution,” it added.
While the state government had argued that the circular calling for maintaining sanctity of the state flag was withdrawn because the “mandate or duty is clear and explicit in Section 144 of the State Constitution and that the concerned weren’t to be reminded of their duty to respect the state flag”, Justice Masoodi has termed it “far from convincing”.