Excelsior Correspondent
JAMMU, Jan 1: Division Bench of State High Court comprising Justice Tashi Rabstan and Justice Bansi Lal Bhat today stayed the operation of the judgment of Single Judge regarding hoisting of State flag on buildings and official vehicles.
The stay was granted in a LPA filed by retired IG and National Secretary of the BJP Farooq Khan.
During the course of arguments, Senior Advocate Sunil Sethi appearing for LPA submitted, “the writ court has traveled beyond the scope of the petition and dealt with the questions which did not form the issues raised in the pleading”, adding “Circular No 13-GAD of 2015 dated March 12, 2015 did not have the statutory flavour and same cannot be enforced in absence of a positive mandate contained in the Section 144 of the Constitution of Jammu and Kashmir which merely describes the dimension of the State Flag”
Mr Sethi further submitted that 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 Circular No 13-GAD of 2015.
“Single Judge has also lost sight of Article 1 of the Constitution of India which is fully applicable to the State of Jammu and Kashmir undisputedly under Article 370 as well which declares the State of Jammu and Kashmir to be integral part of the country and the State of the Union”, he said, adding “while passing the judgment impugned the Single Judge has also overlooked the provisions of the Constitution of Jammu and Kashmir particularly Section 3 which states that “Relationship of the State with the Union:-The State of Jammu and Kashmir is and shall be integral part of the Union of India”.
“This position makes it very clear that the State of Jammu and Kashmir is a State of Union of India and as such there can be no question of the equal treatment of the symbol of the State with the national symbol. The provisions of Article 370 can be read to say that the State of Jammu and Kashmir can have its own flag. The State of Jammu and Kashmir having its own flag is a position which as per law is not sustainable and is open to analysis”, Mr Sethi further said.
In the petition, it has been further submitted that the issues which were put before the Single Judge are basically political issues which are to be determined by the State Legislature and not by the courts. “It is an admitted position of law that the courts cannot exercise the powers which are to be exercised by the Legislature and as such the judgment impugned is clearly passed an exercise of powers not vested with the Single Judge under the Constitution of India as well as Constitution of Jammu and Kashmir”, Mr Sethi said, adding “even when the State Flag was adopted on 7th June, 1952, an attempt was made to mention the State Flag as a national Flag of J&K State. However, in the amendment made by the then Secretary of the Drafting Committee, the word “National” was deleted which clearly shows that it was never the desire of the State Legislature to treat the flag as national flag”.
Senior Advocate Sunil Sethi, while arguing the matter, submitted that similarly the observations/directions of the Single Judge with regard to the office of Governor were neither called for nor subject matter of consideration before the Single Judge.
“The whole issue besides being political has not been addressed by the Single Judge in its true and proper perspective. For changing the position of Governor to Sadri-Riyasat i.e. before the amendment in the Constitution of Jammu and Kashmir, a discussion had to further taken place about the instrument of accession which protected the position of the Ruler and that for situation a broader discussion will take place about the continuation of monarchy in the State as contained in the Instrument of Accession”, he said, adding “as the whole concept is against the national integration and historic mistakes have been rectified by Constitutional amendments, the same cannot be relooked into or re-worked and Single Judge has decided the issues of vital importance and significance in a cursory manner and the judgment is more of a political speech than the judgment of a constitutional court without evaluating the constitutional provisions the Single Judge has given observations which are dangerous for the national integrity”.
After hearing Senior Advocate Sunil Sethi in length, DB issued notice to Chief Secretary J&K and Abdul Qayoom Khan petitioner returnable within four weeks and called the record of the writ court. Meanwhile, subject to objections from other side, Division Bench stayed the operation of the judgment.
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