Srinagar: The Kashmir High Court Bar Association on Friday termed Central Government’s ordinance on J&K Reservation (Amendment) to amend J&K Reservation Act, 2004, and Constitution (Application to Jammu and Kashmir) Amendment Order 2019 as a “clear fraud on the provisions of Article 370 of the Constitution of India and unconstitutional.”
After a marathon meeting of its members, the lawyers’ body demanded their immediate rolled back.
In a statement issued here, the lawyers’ body examined in great depth the ordinance as well as Constitutional Application Order, 2019 from the Constitutional perspective and found that the Ordinance and the order issued is not what it purports to be, but in essence and substance merely a cloak to extend to the State of J&K the constitutional amendments carried out in the Constitution of India by the Constitution (seventy-seventh Amendment) Act, 1995 as well as the 103rd Amendment effected to the Constitution of India, creating provision for Reservations for Economically Backward members of the Society.
“Be noticed, that the constitution of India doesnot by its own force apply to the State of J&K and its provisions can be extended only in accord with the mechanism constitutionally provided and prescribed under Article 370 of the Indian Constitution,” reads the statement.
The lawyers body said that the Central government at a point of time, when the Supreme Court is already seized of the writ petition challenging constitutional validity of Article 35-A of the Constitution of India as applicable to the State of J&K, has come out with the J&K Reservation (Amendment) Ordinance to amend J&K Reservation Act, 2004, and Constitution (Application to Jammu and Kashmir) Amendment Order, 2019, to amend the Constitution (Application to Jammu and Kashmir) Order, 1954, purportedly on the recommendations of State Administrative Council (SAC).
“The council after the Presidential Proclamation of Emergency dated 19.12.2018, has ceased to exist, therefore, could not have made any recommendation,” it said, adding, “It hardly needs to be mentioned that in terms of Presidential Proclamation of Emergency dated 19.12.2018, the President has assumed all the functions of the State and all powers vested or exercisable by the Governor and in exercise of those powers or functions it has been declared by the President lawful to act to such extent as he thinks fit, through the Governor.”
The Governor is thus an “agent of the President of India” and an agent cannot make any kind of recommendations for issuing any Ordinance or order, it said. “It is also relevant to mention here that in terms of another notification issued by the President on 19.12.2018 itself, the Governor has to exercise only those powers granted to him subject to superintendence, direction and control of the President, making it further clear that the concurrence given by the Governor, in the instant case, is a concurrence from Ceaser to Ceaser’s wife.”
“Given the constitutional mandate enshrined in Article 370, as regards, the application of the provisions of the constitution of India to the State of J&K, as well as the constitutional authorities, designated thereunder and the dispensation at the helm of affairs in the State of J&K at present, the Ordinance issued by the Central Govt, therefore, is clearly a fraud on the provisions of Article 370 of the Constitution of India and therefore unconstitutional, liable to be rolled back.”
The Bar Association, according to the statement, also found the notification dated 28.02.2019, declaring “Jamaat-i-Islami” as an unlawful association, as legally and constitutionally invalid because it is aimed at to deprive the Kashmiri Muslim students to receive education in the schools run by Falah-i-Aam Trust, which is their fundamental right.
“It is also aimed to curb the peaceful religious activities of the organization which is clearly an interference with the religious affairs of Muslims of Kashmir.”
