Srinagar: Jammu and Kashmir High Court on Monday issued a notice to government of India and J&K government on a petition filed by Kashmir High Court Bar Association, seeking its directions to declare Jammu and Kashmir Reservation (Amendment) Ordinance, 2019; and Constitution (Application to Jammu & Kashmir) Amendment Order 2019, as unconstitutional.
Union cabinet headed by Prime Minister Narendra Modi approved the J&K Reservation (Amendment) Ordinance, 2019 to “bring persons living in remote and inaccessible areas under reservation ambit.”
The Cabinet had also approved amendment to the Constitution (Application to Jammu and Kashmir) order 1954 by the way of Constitution (Application to Jammu & Kashmir) amendment order, 2019.
This, according to government, will provide 10 per cent reservation for economically weaker sections, which includes Scheduled Castes, Schedule Tribes, in educational institutions and government job in addition to the existing reservation in Jammu and Kashmir.
The lawyers’ body said that Union Cabinet, through Cabinet Secretary on February 28 in “blatant violation of Article 356 of the Constitution of India” approved a proposal of the J&K government regarding amendment to the Constitution (Application to Jammu & Kashmir) Order, 1954, by way of Constitution (Application to Jammu & Kashmir) Order, 2019, whereunder, the Provisions of Constitution (Seventy Seventh Amendment) Act, 1995 and Constitution (One Hundred and Third Amendment) Act, 2019, were applied to the State of J&K.
“The (Union Cabinet, through Cabinet Secretary) also approved the promulgation of an Ordinance known as J&K Reservation (Amendment) Ordinance 2019, amending J&K Reservation Act, 2004 to bring persons residing in the areas adjoining International Border, within the ambit of Reservation at par with persons living in areas adjoining Line of Actual Control (LOAC).
“(The Bar Association) genuinely believe that the Constitution (Application to Jammu and Kashmir) Order, 2019, as also J&K Reservation (Amendment) Ordinance, 2019 have been issued by Ministry of Law & Justice (Legislature Department) Govt. of India, New Delhi on the approval of Union Cabinet without any power authority and competence”.
The Bar has challenged on the grounds that the Constitutional (Application to J&K) Order, 2019, is ex-facie unconstitutional because the Constitution of India doesnot apply to the State of J&K on its own force. “It applies to the State by virtue of Article 370 of the Constitution of India, which provides a mechanism for application of Constitution of India to the State of J&K, requiring a ‘consultation’ or a ‘concurrence’ of the State government.
“In terms of Article 370 the power of Maharaja had also been made specifically qualified by making any decision pertaining to any aspect of Article 370, subject to the advice of the Council of Ministers for the time being in force. The Maharaja who was otherwise the sovereign head of the State had also inducted a Council of Ministers by an order dated 05.03.1948 and had vested all the responsibility of the Govt. to the Council. It was therefore the Council of Ministers, which would take all the decisions and was collectively and jointly responsible for all acts of the Govt. The Maharaja, for purposes of Article 370, would act only as per the advice of the Council of Ministers,” the lawyers body said, adding, “The Maharaja then and the Sadar-i-Riyasat thereafter, were merely nominated heads with no independent decision making power in the context of Article 370 of the Constitution of India.”
The Governor of J&K, who does not otherwise also figure anywhere in the Explanation appended to Section 1(b) of Article 370, in absence of Council of Ministers was not therefore legally competent to give any “concurrence” to the application of any part of Constitution of India to the State of J&K.
The unilateral action of the Governor in giving his “concurrence” to the Constitution (Application to J&K) Order, 2019, is therefore clearly without jurisdiction and unconstitutional rendering the same liable to be struck down, the lawyers body added.
It said the President of India, after having issued Proclamation under Article 370 of the Constitution of India, had no power to amend J&K Reservation Act, 2004, which is a State Act, by issuing the Ordinance in exercise of the powers purportedly vested in him under Section 91 of the Constitution of J&K.
“It is very relevant to mention here that Article 356 falls under Part XVIII of the Constitution of India and deals with emergency provisions. Such provisions are quite different from the general powers vested in the State or Central Govt,” the lawyers body said, adding, “However, whenever a President’s Rule is declared under Article 356 of the Constitution of India, in any State, the functions of the State Govt. vest with the President and the power of Legislature i.e., the power to make or amend laws vests with the Parliament. It is only the Parliament which can make or amend any law, during the President’s Rule. In that view of the matter it was not the President but the Parliament which could amend a State Law. “
