J&K state flag must fly: HC

Ishfaq Tantry

Advertisement

Tribune News Service

Srinagar, December 27

In a judgment being interpreted as a “re-assertion of Jammu and Kashmir’s lost autonomy”, the High Court has asked all the constitutional authorities to hoist the state flag on their vehicles and buildings as mandated under Section 44 of the J&K Constitution. 

Reiterating the special status enjoyed by J&K under Article 370, the High Court ruled on Saturday that it was an “informed decision” of the J&K Constituent Assembly “not to recommend modification or change in the Article”, and to “allow it to remain” in the same form even after the J&K Constitution came into force on January 26, 1957.

The High Court also questioned the Sixth Amendment — also called The Constitution of Jammu & Kashmir (Sixth Amendment) Act 1965 — which replaced Sadr-i- Riyasat with the Governor, by observing that the “elective status of Head of the State was an important attribute of the constitutional autonomy enjoyed by the state”, and a part of the “basic framework” of the state Constitution.

The High Court suggested that the J&K Assembly should consider the matter “to uphold the Constitution and rectify an error”. The Sixth Amendment replaced  Sadr-i-Riyasat with the Governor, to be appointed by the President and is head of the state. 

The judgment was delivered by Justice Hasnain Massodi on a petition filed in 2013 by Abdul Qayoom Khan, who served as a Forest Conservator in the J&K government.

The petitioner had later on also challenged the PDP-BJP government’s decision to withdraw a controversial circular on March 13 this year related to hoisting of the state flag alongside the Tricolour.

Under fire from the political parties, especially the BJP, which has been calling for one flag across the country, the Mufti Mohd Sayeed government had withdrawn the controversial circular, saying it was not approved by a “competent authority”.

Experts said the observations made by the High Court with regard to the Sixth Amendment and Sadr-i- Riyasat are “not binding” on government, but it is “duty-bound” to implement the directions with regard to the hoisting of state flag if not appealed against before a larger Bench. Senior High Court lawyer Zaffar Shah termed the judgment “a re-assertion and re-confirmation” of the autonomy of J&K. The  government, he said, was duty-bound to implement the March 12 circular which asked for respect to the state flag. Advocate General Jahangir Iqbal said any decision on an appeal could be taken only after receiving the ruling’s copy.