A division bench of Jammu and Kashmir High Court here Friday stayed a single judge order asking the Jammu and Kashmir government to hoist the state flag on all its buildings and flagpoles of vehicles carrying constitutional authorities.
Calling the record of the writ petition filed before the high court’s single bench and issuing a notice returnable within four weeks to both the Chief Secretary and the petitioner, a division bench comprising Justice B L Bhat and Justice Tashi Rabstan stayed the operation of the judgment. This followed an appeal by retired Inspector General of Police and BJP’s national secretary Farooq Khan, who said the national flag is supreme and cannot be held on par with the state flag.
Farooq Khan’s appeal had challenged Justice Hasnain Masoodi’s December 27 judgment in which the judge, while disposing of a writ petition filed by one Abdul Qasoom Khan, had directed the state government to hoist the state flag on all official buildings and flagpoles of all official cars carrying constitutional authorities.
Petitioner Qasoom Khan had complained that the state flag was not being hoisted on official buildings and cars despite issuance of a circular. Describing non-adherence to the government instructions by some constitutional authorities in the matter as “contempt of the flag and breach of law”, the petitioner had sought the high court’s intervention.
The state government’s circular dated March 12 last, directing hoisting of the state flag alongside the Tricolor was, however, withdrawn following protests by the BJP, who has always insisted on “Ek Nishan, Ek Vidhan and Ek Pradhan” (One Constitution, One Flag and One Soverign Head).
Appearing for Farooq Khan, senior advocate Sunil Sethi pointed out that the issue put before the single bench was basically political, to be determined by the state legislature and not by the courts.
Pointing out that the single judge had “gone beyond the scope of the petition”, as he dealt with issues not raised in the plea, the BJP national secretary submitted that the circular did not have the statutory flavour and the same cannot be enforced in the absence of a positive mandate contained in Section 144 of the Constitution of Jammu and Kashmir, which merely describes the dimension of the state flag.
Moreover, the J&K Prevention of Insult to State Honors Act, 1979, is a penal statue and its provisions cannot be enforced through the mode of executive orders like circulars, he pointed out through his counsel.
Advocate Sethi also drew the court’s attention towards the single judge “losing sight” of Article 1 of the Constitution of India, which declares Jammu and Kashmir as an integral part of India.
“The Article is fully applicable to the state of Jammu and Kashmir undisputedly under Article 370 as well. Apart from this, the judge had also overlooked the provisions of the Constitution of Jammu and Kashmir, especially Section 4 which states that ‘the State of Jammu Kashmir is and shall be integral part of the Union of India’,” he added.
Pointing out that provisions of Article 370 can be read to say that the state of Jammu and Kashmir can have its own flag, Sethi argued that the state having its own flag is a position which “as per law is not sustainable and is open to analysis”.