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LAHORE, Jan 5: The permission granted by the Punjab government to fly kites on Feb 24 and 25 as part of the Basant festival is a flagrant violation of the Supreme Court order of Oct 25, 2005, under which a complete ban was imposed on the manufacture and trade of kite, twine and kite flying.
A full bench comprising Chief Justice Iftikhar Mohammad Chaudhry, Justice Javed Iqbal, Justice Faqir Mohammad Khokhar and Justice Ijaz Ahmad Chaudhry, in a suo moto notice, laid down nine conditions for the implementation of the prohibitive order and also issued directions to legislate in giving legal sanction to the ban.
The apex court scheme did not envisage any role for the provincial government. It said that only the city district government would function as an authority to enforce the prohibitory regime and allow relaxations.
The conditions laid down by the apex court worked out a plan under which the CDG would move the SC in seeking permission (from the court) to give relaxation in kite-flying activities through a petition. The court would allow the concession and specify a date which would be the day when there would be no ban on kite flying. The district nazim was, accordingly, required to issue a notification pronouncing the relaxation of the ban with reference to the court permission.
The apex court required the CDG to submit measures taken for the safety of public because, the court held, the safety of the people was of paramount importance.
The court had also decided that one day in a year would be fixed for the celebration of Jashn-i-Baharan across the country and the ban would be lifted only for that day. Except for that day, there would be a complete ban on kite flying across the country.
The court had also made it clear that provincial inspectors-general of police, DIGs, district and town and tehsil nazims would be directly responsible for the implementation of the prohibitive order.
Subsequently, the provincial government enforced the Punjab Prohibition of Kite-flying Ordinance 2001 with certain modifications as was required under the apex court order. In fact, all the provincial governments reported to the apex court that they had enforced identical legislation. The law required the CDG to establish an authority for the registration of manufacturers of kite, twine and other related material. The city district government of Lahore, accordingly, established the authority and started the registration process which was yet to be completed. Shopkeepers were also required to get themselves registered for the sale of the material.
BAN LIFTED: Later, the Supreme Court lifted the ban on Feb 10, 2006, on a petition by the CDGL and allowed Basant celebrations between Feb 25 and March 10. The ban was re-imposed after the stipulated date.
Subsequently, the apex court issued a decree that the ban on flying, manufacturing and trading of kite and other material “shall remain applicable, except for the 15 days for which specific permission was granted”.
Sections 4 and 4-A of the Punjab Prohibition of Kite-flying Ordinance, 2001, provides for the registration of manufacturers, traders and shopkeepers, appointment of CDG inspectors for summary trial of offenders in addition to judicial magistrates, and the penalty. The law stipulated that the offender would be given a maximum of three years in prison with or without a fine up to Rs40,000 or with both.
However, the Punjab government’s decision to impose a fine of Rs100,000 is not provided by the law. The government has stated that the ordinance is being amended for the purpose. Yet, the provision of fine is unlawful till the law is amended accordingly.
Advocate M D Tahir told Dawn on Friday that he was moving the Supreme Court on Saturday (today) in a contempt of court petition which sought a penal action against all those committing contempt of the apex court order.
Similarly, advocate Mohammad Azhar who has been arguing in a writ petition (No 1972/2006) of identical nature on behalf of the Lawyers Welfare Funds moved in the Lahore High Court, said that he would move the LHC in a miscellaneous application, seeking the fixing of responsibility on the Punjab government officials who took the decision to celebrate Basant while a writ petition was yet pending.
Justice Mian Mohammad Najamuz Zaman is seized of the writ petition submitted in March 2006 under article 190 of the Constitution projected to aid the Supreme Court in the implementation of the ban.
Police submitted a report six months after the court order giving details of casualties in the province because of throat slit by razor-sharp twine. The police stated that 600 people had died because of accidents involving kite string.
The application seeks taking cognizance of the negligence of senior police officers in failing to strictly enforce the court ban.
