Srinagar, Dec. 27: Jammu and Kashmir High Court has held that Article 370, which gives the state special status, can neither be abrogated nor amended and observed that the Assembly had no power to replace the Sadr-e-Riyasat (President) post with that of the governor in 1965.

The court also ordered hoisting of the state flag on all government buildings and vehicles to adhere to the mandate and spirit of the J&K Prevention of Insult to State Honour Act, 1979.

Justice Hasnain Masoodi said Article 370 of the Indian Constitution could not be abrogated or amended because a key mechanism provided under Clause (3) of the article was no longer available.

Also, the state's Constituent Assembly, which framed its own Constitution, is presumed to have taken an "informed decision" not to recommend modification or change in the article and allow it to remain in the same form even after the statute came into force on January 26, 1957, the court said.

The clause had conferred on the Constituent Assembly the power to recommend to India's President that Article 370 be declared inoperative. But the Constituent Assembly, the court said, did not make any such recommendation before its dissolution on January 25, 1957.

"Resultantly, Article 370, notwithstanding its title showing it as a temporary provision, is a permanent provision ," the court said on Saturday. Jammu and Kashmir is the only state with a separate Constitution, flag and penal code.

The BJP, part of the state's ruling coalition led by the PDP, had for years made scrapping of Article 370 a centrepiece of its agenda but since last year has called for a "debate" on whether the provision had benefited the state.

Justice Masoodi, hearing a petition seeking hoisting of the state flag on government offices, said Article 370 embodied the conceptual framework of the relationship between the Centre and Jammu and Kashmir, and laid down the broad features of the special status.

The judge also observed that replacing 'Sadr-e-Riyasat' with governor was "against the basic structure of the (state) Constitution since the state legislature lacks the power ". "The elective status of the head of the state was an important attribute of constitutional autonomy enjoyed by the state, a part of the 'basic framework' of the state Constitution and, therefore, not within the amending power of the legislature."

The state had a Sadr-e-Riyasat and a Prime Minister till 1965 but the then state government led by Ghulam Mohammad Sadiq changed the nomenclatures to governor and chief minister in April that year, purportedly on the Centre's directions.

The court said the Sadr-e-Riyasat - the head of the state - was to be elected by the people through their representatives in the Assembly, unlike the existing scheme where the person is appointed by the Centre without even consulting the state.

The judge, however, left it to the legislators to "rectify the error". MLA Sheikh Abdul Rashid, of the Awami Ittehad Party, said he would bring a bill to correct "the huge errors". The National Conference welcomed the order.