After its landmark judgment on Article 370, J&K High Court on Monday announced that the conversion of the post of ‘Sadar-e-Riyasat’ (Head of the State) into Governor was unconstitutional and has asked the state legislature to take measures to uphold the constitution.
The court has also directed the government to hoist the state flag on all official buildings and vehicles of the constitutional authorities.
“The Constitution of Jammu & Kashmir (Sixth Amendment) Act 1965 amended the State Constitution and replaced ‘Sadri Reyasat’ by Governor. The ‘elective’ status of Head of the State was an important attribute of Constitutional autonomy enjoyed by the State, a part of ‘Basic Framework’ of the State Constitution and therefore not within the amending power of the State legislature,” Justice Hasnain Masoodi observed in his judgment, while disposing off a writ petition.
“(The) section 26 of Constitution provided that Head of the State (Sadri Riyasat) shall be elected in the manner provided under Section 27. The Head of the State as provided under Section 27, of the Constitution, was to be elected by people of the State through their representatives in State Legislatures. In terms of aforestated amendment Governor is appointed by the President and is to be Head of the State. The office of Head of the State in wake of amendment ceases to be ‘elective’. The sixth amendment therefore did not merely change the nomenclature, but the eligibility, mode and method of appointment of Head of the State,” added Justice Masoodi.
“In absence of challenge to Jammu & Kashmir Constitution (sixth Amendment) Act 1965, it would be appropriate to leave it to State Legislature to consider the matter and take measures as required to uphold the Constitution,” he has observed. “The Legislature is equally under a constitutional obligation to uphold the Constitution and rectify an error, wherever necessary.”
The court has also directed the state government to hoist the state flag on all official buildings and vehicles of the constitutional authorities. “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. (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.
The judgment is a setback to Mufti Mohammad Sayeed-led PDP-BJP coalition government that had withdrawn a circular asking the constitutional authorities to respect the state flag and hoist it on their official cars. Today’s judgment has also put the BJP ministers and legislators in a precarious position as most of the party legislators didn’t hoist the state flag on their official cars or offices.
In March this year, the J&K government had issued a circular saying, all the “constitutional authorities are enjoined upon to maintain the sanctity of state flag, at all costs, as is being done in respect of 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.
In his judgment, Justice Masoodi has once again reiterated that Jammu and Kashmir enjoins 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 has observed in his judgment.
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 state flag”, Justice Masoodi has termed it “far from convincing”.
“It was not open to respondents to withdraw circular by one line without indicating the reasons for such withdrawal,” Justice Masoodi observed.
“It is a matter of common sense that once a person, in terms of a written circular, is required to act in a particular manner as acting in the manner directed would be necessary to carry out mandate of law, the net effect of withdrawing such circular would be declaring that the person need not act in the manner he was required to act in obedience to constitution and law”.