A division bench of the Jammu and Kashmir High Court on Friday stayed the order of its single Bench, which had directed the state government to hoist the State flag at par with the National Flag on government buildings and official vehicles.
The order came on a special leave petition filed by the BJP legislative council member from Kashmir valley and former top counter insurgent and national secretary of BJP, Farooq Ahmad Khan, who had challenged the single bench order in the Jammu wing of the J&K high Court.
The order was passed after the Jammu and Kashmir deputy Chief minister Nirmal Singh virtually challenged the single bench decision of Justice Hasnain Masoodi, who passed the judgment one day before his retirement.
Justice Masoodi said in his order, "The State flag has the same sanctity and position as the Union flag has under the Indian Constitution and other statutory provisions. Therefore, this sanctity and position has to be maintained at all costs."
"It connects the past with the present and future. (The) Flag while reminding us of struggle made by the people and their sacrifices also makes us aware of our aspirations," the 27 December judgment read.
When asked to comment on the stay ordered by a two-judge bench on hoisting of the State flag alongside National flag on constitutional buildings, senior BJP leader from Jammu and Kashmir and Minister of State in Prime Minister's Office (PMO) Jitender Singh said on Friday, "It won't be right for me to comment on this issue."
"I am sure the government of the state of Jammu and Kashmir as well as the legislature of the state have the prerogative to take a view on these issues and I am also sure that they are capable enough to take a view and proceed accordingly," he added.
Jammu and Kashmir is the only state in the Indian Union to have its own constitution. The state has the permission to fly its flag along with the tricolour.
“It is nothing new. The judge was merely repeating what is history and written in the constitution of Jammu and Kashmir. We have seen from the last few years that the State flag, which used to fly at par with the Union flag, going missing in Delhi’s offices of the Jammu and Kashmir government, which is illegal,” Zaffar Ahmad Shah, a noted constitutional lawyer told Firstpost.
On 27 December, the Jammu and Kashmir High Court directed the State government to hoist the State flag along with the National flag, a decision which did not go well the BJP, which is in alliance with the Peoples Democratic Party in the state.
“We moved court and got the stay. Jammu and Kashmir is an integral part of India and no flag should equate with the National flag. Individually, and as a member of the BJP, I would resist anything like this. That is reason I went to court and got the stay on the order,” Farooq Khan, national secretary of BJP, told Firstpost.
On the legality of removing the flag from the state buildings and properties Khan said: “It is a matter of interpretation. The Constitution of Jammu and Kashmir nowhere equates State flag with National Flag.”
However, the BJP’s coalition partner in the state, Peoples Democratic Party leader Waheed ur Rehman Para told Firstpost the issue is being viewed through the nationalistic prism, which has distorted the debate.
“The flag is not inconsistent with the National Flag. It has been there from last 60 years by the virtue of Indian Constitution and State Constitution and there has been no conflict between National and State flag. The National Flag has been always hoisted on Independence and Republic days. We don’t hoist the State on these occasions. The State flag symbolises the special status of Jammu and Kashmir within the Indian Union,” Para told Firstpost.
Former Chief Minister and National Conference leader, Omar Abdullah, attacking the chief minister Mufti Mohammed Sayeed on Twitter saying if the Mufti cannot defend the state’s dignity and flag from the “nefarious” plans of his ally BJP “he should step down and find someone who can” defend it.
Abdul Qayoom Khan, a retired Indian Forest Service, who had filed the writ petition in J&K High Court in 2013, told Firstpost said Section 144 of the State Constitution states that the Flag of the State is required to be hoisted on the official and State vehicles.
“Some of these vehicles, which include the official cars of the ministers, were not displaying the State Flag. I filed a writ asking for a direction to be issued to the effect that the State Flag be given same respect as the union flag. Those who don’t, have to face the law according to the Jammu and Kashmir insult to the State Honor Act of 1979,” Khan, who pleaded the case for three years told said.
After the Jammu wing of the High Court stayed the order of its single bench, Khan said that he would challenge the division benches order in future.
“The powers of the State Constitution have all been eroded from time to time. It has been a continuous and institutional injustice with all of us who have been guaranteed the special status by the Indian constitution,” he said.
On 14 March, 2015, two weeks after the BJP-PDP government came into office, the state government had to withdraw in 24 hours a circular regarding the hoisting of the State flag along with National flag on all official vehicles and government buildings. The circular had called for maintaining sanctity of the State flag at all costs.