The Constitution (Application to Jammu and Kashmir) Amendment Order, 2019: A critical analysis

Article 35 A

Everybody knows that Article 35-A is sub judice before the Apex Court of India.  The petitioners who challenged the Article are proxy of the ruling class of India who want the Article to be declared unconstitutional in total disregard of the conditions under which it was incorporated in the Constitution by the First President of Free India, Dr. Rajendra Prasad, at the behest of the founding fathers of Indian nation. The move obviously is to change Muslim majority character of the State not only in terms of ownership of immovable properties, thereby creating new settlements of outsiders in the State, but also to open flood gates for them in government jobs.  To mention, the Article 35 A, inter alia secures employment rights of the State subjects in the State government jobs.

Any attempt to amend or change or tinker with this most important Article, as far as State Subjects are concerned, in any manner whatsoever, fully or partially, during pendency of the matter before the Supreme Court , will be a gross contempt of the Supreme Court where the matter is pending hearing & adjudication. The Supreme Court has not heard or decided the matter as yet. But it seems that the ruling class in view of fast approaching Lok Sabha elections are in somewhat haste to shake this Article by bringing the Presidential Ordinance so that it gives them an advantage in coming Parliamentary Elections since their declared policy on this eye sore called Article 35-A is not any hidden secret. “The move is aimed to help people from the Jammu region, a key vote bank for the BJP in the state”. Hindustan Times dated 28-02-2019

Till the Supreme Court decides that matter, no measures could be taken to dilute the Article 35-A indirectly even. In spite of that, the Union Cabinet under the chairmanship of PM Modi, passed two Orders on 28th day of February, 2019 which have been issued as Presidential Ordinance of 2019 or, specifically, the Constitution (Application to Jammu and Kashmir) Amendment Order, 2019.  Finance Minister, Arun Jaitly, maintained that “because of the provisioning of Article 370, all laws passed by the Centre including constitutional changes have to be approved by the assembly so that they could be applied in the state. Provisions with regard to reservations for the SCs, STs and OBCs which were brought in 1993 through the 97th Amendment have not been made applicable to the state till today. With the consent of the Governor, the same has been made applicable by amending the 1954 Constitutional order.” Hindustan Times dated 28-02-2019

Fast approaching elections & pendency of the matter in the Apex Court have applied a whip to the ruling party for finding some indirect way of diluting this provision together with Article 370 of the Constitution. On 28th day of February, 2019, the Union Cabinet passed the Orders which reportedly have been issued as Presidential Ordinance after the President’s consent. First of the two Orders of the Union Cabinet that has been passed to approve the proposal of “J&K government” regarding amendment to the Constitution (Application to J&K) Amendment Order, 1954/ Presidential Order, 1954. Article 35-A is a product of the said Presidential Order of 1954. Both are intertwined. One cannot be separated from the other. So, in that sense, both are sub-judice in the Supreme Court. How is it to possible to amend the Presidential Order of 1954 when Article 35-A emanates from it & is very much based on it? So, the said Cabinet Order dated 28-02- 2019 appears to be in violation of the matter which is pending before the Apex Court. Secondly, the proposal regarding amendment to the Constitution (Application to J&K) Amendment Order, 1954/ Presidential Order of 1954 has been moved by the Governor of the State who is representative or nominee of the Central Government. He or, for that matter, his State Administrative Council/SAC is not a substitute for “Government of J&K” as envisaged under Explanation to Article 370 (1) of the Constitution.  Thirdly, with promulgation of the Presidential Rule in J& K on 18-12-2018, SAC has ceased to exist from that date. If consent or recommendation as envisaged in Article 370 has been given by the Governor Satpal Malik for said amendment, it is not by the Government of J&K.

The second of the Union Cabinet Order of 28-02-2019 has brought amendment to the Jammu and Kashmir Reservation Act, 2004 which “provide for reservation in appointment and admission in Professional Institutions, for the members of Scheduled Castes, Scheduled Tribes and other socially and educationally backward classes and for matters connected there with or incidental thereto.”  The said Act provides for such reservation for the people living in the “areas adjoining the actual line of control”/LOC which means the area declared as such by the Government of J & K from time to time. At present, under the notifications of the Government of J&K, such people living adjacent to LOC are enjoying reservation quota of 3% in appointments & admissions as mentioned above.  The Union Cabinet Order of 28-02-2019 has on the recommendations of the Governor or SAC drastically changed the Act by extending its benefit to the “people living near International Border between India & Pakistan in Jammu division’s three districts. The Constitution (Application to Jammu and Kashmir) Amendment Order, 2019, whereby it has been done, actually extends the benefit of the Constitution (77th Amendment) Act, 1995 as well as the Constitution (103rd (Amendment) Act, 2019 that had created provision for reservations for economically backward members of the society. But, to iterate, under Article 370, the Constitution (Application to Jammu and Kashmir) Amendment Order, 2019 could be passed only with “concurrence “of the State Government & not Governor or SAC, for that matter, as explained above.  

Second, the existing reservation quota of 3% has been extended to 10%. Again, it is quite surprising how the powers that vest exclusively in the State’s elected government under the Jammu and Kashmir Reservation Act, 2004 for making amendments to it can be exercised by the Union Cabinet on the recommendation of their constitutional nominee in the State. The Union Cabinet is not competent to exercise legislative & executive powers of “elected government of the State of J&K”. Even if the objective to amend the said Act is to bring the people living in areas adjacent to IB on par with those living in areas adjacent to LOC, according to Arun Jaitley, Union Finance Minister, as reported in Scroll dated 1-3-2019, under Explanation to Article 370, the Governor is no substitute for elected Government of J&K.  Explanation to Article 370 (1) reads as under:

Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office” ( Emphasis added)

The Governor of the State has not been appointed on the recommendations of the State Legislative Assembly. There is no Legislative Assembly in existence at present as the State is under the Presidential Rule. In absence of Cabinet of Ministers, all decisions taken by the Governor under law are actually the decisions of the President or the CG since he is a constitutional agent of the CG. He is not people’s representative.

Moreover, under section 2 (h) of the J & K Reservation Act, 2004, the Government has been defined as ““Government” which means the Government of Jammu and Kashmir.” It apparently means the elected government of the State. There is no provision in the Act that would indicate that Government for the purposes of the Act means also Governor or CG. So, in this way, also, the Cabinet Order seems to be beyond the power of the CG. The Central government cannot on the recommendations of its own nominee bring such drastic changes in the Presidential Order of 1954 or Jammu and Kashmir Reservation Act, 2004. It is circuitous way of tinkering with Article 35-A & Article 370. The Order seems to be in total violation of Article 370 where-under any Presidential Order has to be passed only with “concurrence” of State government. Obviously, consent or concurrence given by an “agent” (Governor) to the “principal” ( CG) is one & the same. The Governor is not the agent or elected representative of the people of the State. Previously, such an attempt to extend laws to the State by the Presidential Order happened during Jagmohan’s tenure as Governor of the State. Two NC leaders, Mohammad Shafi Uri & A R Rather had reportedly challenged such a move /order in the High Court of J&K.

Many eyebrows will be raised against this Cabinet Order since it needs to be understood as to who the Scheduled Castes, Scheduled Tribes & “economically weaker sections” living in the areas adjacent to the IB of some predominantly Hindu dominated districts of Jammu division are.

It is clear that Constitution (Application to Jammu and Kashmir) Amendment Order, 2019 passed under clause (1) of Article 370 on the recommendations of the Union Cabinet which in turn are recommendations of the State Governor are in violation of express provisions of Article 370, J & K Reservation Act, 2004 & pendency of the matter before the Supreme Court, as discussed above. The Orders will have considerable impact on Article 35-A, Article 370 & grave implications for the State Subjects in long run. It is total erosion of State’s legislative & executive powers.

Last word: The Seven Judges Bench of the Apex Court on 02-01-2017 in Krishna Kumar Singh v. State of Bihar has explained how the use of the Presidential Ordinance is a fraud on the Legislature. The Court ruled that the Ordinance passed by the President or the Governor , as the case may be, must be mandatorily placed before the Parliament or the State Assembly, as the case may be, and that the promulgation of the Ordinances/Orders though having force of law are a fraud on the Constitution and a subversion of democratic legislative processes.  Ordinances are not beyond judicial review.  The author does not feel that this Presidential Order will stand test of judicial review in the light of the said authoritative ruling of the SC.

M J Aslam is Author, academician, story teller, essayist & freelance columnist. Presently AVP, J&K Bank.

Note: Opinions personal & not of the organisation he works for.


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