Fayaz Bukhari
Srinagar, Dec 26: The State High Court today directed the Government to hoist the State flag on all Government buildings and vehicles and adhere to and abide the mandate and spirit of J&K Prevention of Insult to State Honour Act 1979.
Court while setting aside the Government circular (No. 14-GAD of 2015 dated 13.3.2015) directed all Constitutional Authorities to adhere and abide by the mandate of 1979 Act and restored the Government Circular (No. 13-GAD of 2015 dated 12.3.2015) whereby Government had ordered to maintain the sanctity of the State Flag and hoist it on all Constitutional institutions and official vehicles which was later withdrawn.
“For reasons discussed, Writ petition no.1012/2015 is allowed and Circular No.14-GAD of 2015 dated 13th March 2015 set-aside.Resultantly circular No.13-GAD of 2015 dated 12th March 2015 gets restored”, directed Justice Hasnain Masoodi.
“Respondents 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 and Circular No.13-GAD of 2015 dated 12th March 2015. 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 court directions reads.
Justice Masoodi in an elaborated with the reference of Supreme Court Judgment said that Flag is symbol of struggle to achieve goals of freedom movement as also of values that form edifice of polity proposed to be created. “It connects past with present and future. Flag while reminding us of struggle made by the people and their sacrifices also makes us aware of our aspirations”, the judgment reads.
Underscoring the importance of State flag, Court said that Jammu and Kashmir is only State in the Union that has its own Flag adopted by its Constituent Assembly, and provided in its Constitution. “The State Flag is one of the attributes of Constitutional autonomy or limited or residual sovereignty – by whatever name we call it, enjoyed by the State of Jammu and Kashmir. The present discussion on plea raised is therefore, embedded in discourse on extent and scope of the autonomy or limited sovereignty available to the State”, reads the judgment.
Giving the reference of Article 370, Constitution of India court said that neither it can be abrogated, repealed nor even amended under Clause (3) Article 370 is no more available, but also because Constituent Assembly is presumed to have taken informed decision, not to recommend modification or change in the Article and to allow it to remain in the same form even after Constitution of the State came into force on 26th January 1957.
“The expression “temporary” or “transitional” is used only to indicate that Constituent Assembly envisioned by Article 370 was to take a final decision as regards Constitutional relationship between the State and the Union. Two important aspects of the Constitutional autonomy i.e nature of “consultation” and “concurrence” contemplated under Article 370 and change in extent of autonomy, also need to be examined, in the present context”, court said.
Court further said that it hardly needs any emphasis that Article 370 reflects solemn pledge made by people of country through duly elected Constituent Assembly to people of Jammu and Kashmir that the powers of the Union would be restricted to subjects mentioned in the Instrument of Accession and such constitutional provisions, as are extended by the President in “consultation” with or “concurrence” of Government of Jammu and Kashmir and that the State shall have autonomy as regards all other matters.
“It is to be appreciated that with extension of the Constitutional provision or law to the State, there is corresponding decrease in the sphere of autonomy of the State. By giving consent to extension of a Constitutional provision or law, the people of State concede or surrender part of the autonomy covered by extended Constitutional provision or law. As “consultation” or “concurrence” is to affect autonomy of the State, it is consent of people of State conveyed through their duly elected Government that is contemplated under Article 370, Constitution of India”, court said
“Consultation’ or ‘concurrence’ therefore, cannot be that of Governor when the State is placed under Governor’s Rule under Section 92, Constitution of Jammu and Kashmir, or Presidential rule under Article 356, Constitution of India. President of India cannot have “consultation” with Governor or seek his ‘concurrence’ while extending Constitutional provision to the State or applying a law to the State, as the Governor having been appointed by President in terms of Section 27, Constitution of Jammu and Kashmir, it would not be ‘consultation’ or ‘concurrence’, contemplated under Article 370 Constitution of India”, court said.
Giving other aspect of Constitutional autonomy, which is enjoyed by the State under Constitutional framework reflected in Constitution of Jammu and Kashmir and Article 370, court said Constitution of India, relates to change or modification in extent of autonomy by an amendment to the Constitution of Jammu and Kashmir.
Court said that Constitutional autonomy guaranteed to the State is ‘Basic Structure’ of State Constitution and beyond amending power available to the State Legislature under Section 147 of the Constitution. One of important facets of autonomy enjoyed by the State and therefore ‘Basic Structure’ of the State Constitution as recommended by Basic principles committee, was ‘elected Head of State’.
“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. The Constitution of Jammu & Kashmir (Sixth Amendment) Act 1965 amended the State Constitution and replaced “Sadri Riyasat” by Governor. In terms of afore stated 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”, court said.
After these reference and again putting focus on the sanctity and importance of State Flag court said a brief over view of the extent of the Constitutional autonomy, also called as limited or residual sovereignty, rendered necessary because of questions raised in the present petition, Constituent Assembly of India, as already stated, on 23rd June 1947 set up an ad-hoc committee to select Flag for Independent India. Pandit Jawahar Lal Nehru moved proposal to adopt the Flag, recommended by committee on 22nd July 1947. The resolution was approved unanimously. The Flag served as National Flag of Dominion of India between 22nd of July 1947 and 15th August 1947 and from 15th August 1947 is National Flag of free India.
“The sentiments expressed in the Constituent Assembly of India were echoed in the Constituent Assembly of the Jammu & Kashmir. The leader of House (Prime Minister) on 7th June 1952 while moving resolution for adoption of “Flag” of Jammu and Kashmir State”, court reiterated.
Court said the mover of resolution and participants in debate highlighted features of the Flag and sentiments these represented. “Three parallel strips on Flag were said to represent three regions of the State, its colour to reflect ideals of secularism and the plough respect for peasants and workers.”
The State Government alive to Constitutional mandate issued Circular No.13-GAD of 2015 dated 12th March 2015, impressing upon all Constitutional authorities to maintain the sanctity of the State Flag, at all costs, as is being done in respect of the Union Flag; that the Flag shall always be hoisted on the buildings housing Constitutional Institutions and shall be used on the official cars of Constitutional Authorities; and that any deviation in this regard shall amount to insult to the Flag within meaning of Jammu and Kashmir Prevention of Insult to State Honours Act, 1979.
Respondent State in its objections to the writ petition do not dispute that Constitutional authorities are to maintain sanctity of State Flag and respect the State Flag in terms of the Constitutional provisions and the Jammu and Kashmir Prevention of Insult to State Honour Act, 1979; that there is a stated position under Section 144 of the State Constitution about the State Flag and non-hoisting of the Flag by Constitutional authorities would amount to insult to the Flag.
It was however, contend by the respondent state before the court that the mandate or duty is clear and explicit in Section 144 of the State Constitution, and all concerned were not to be reminded of their duty to respect the State Flag. They justify withdrawal of Circular No.13-GAD of 2015 dated 12th March 2015 on said ground alone.
“The justification sought to be offered is far from convincing. Respondents were to realise that once it was found necessary to enjoin upon all Constitutional authorities to respect the State Flag in the manner set out in circular No.13-GAD of 2015 dated 12th December 2015, reminding them that they by not respecting the Flag in the manner indicated in the circular, may attract penal consequences under J&K Prevention of Insult to State Honours Act, 1979,it was not open to respondents to withdraw circular by one line order without indicating reasons for such withdrawal”, Court said adding :”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”.
Court as such make it clear that respondents by issuing Circular No.13-GAD of 2015 dated 12th March 2015, enjoining upon all Constitutional authorities and thereafter withdrawing it by a one line circular, have in effect conveyed the message that Constitutional authorities may not adhere to whatever was required in terms of Circular No.13-GAD of 2015 dated 12th March 2015. Circular No.14-GAD of 2015 dated 13th March 2015 does not give any reason for withdrawal of earlier circular.
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