Rashid Paul

HC issues notice to GoI in petition challenging extension of 77th, 103rd amendments to J&K

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Petition fears ‘similar mechanism’ may be used to ‘do away with Article 35-A’

Srinagar, Mar 18: The J&K High Court on Monday issued notice to Government of India (GoI) in a petition seeking quashing of the Reservation Ordinance by the Union cabinet that grants reservation to people living near international border in Jammu region of the state.

The notice was directed by the bench of Justice Rajesh Bindal in a petition by Mohammad Ashraf Bhat and a few other practicing lawyers at the J&K High Court.

The Union Cabinet had on 28th of February approved the J&K Reservation (Amendment) Ordinance, bringing persons residing in the areas adjoining international border within the ambit of reservation at par with persons living in areas adjoining the Line of Control.

The ordinance provides for amendments in the J&K Reservation Act, 2004, to offer benefits to people living in these particular areas.

The High Court after admitting the petition issued notices to various executive authorities of GoI through Ministry of Home Affairs (Department of J&K Affairs), Ministry of Law & Justice (Legislature Department) Union Cabinet and J&K State through its Chief Secretary.

The petitioners said that the Union Cabinet 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, where under, 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.

They accordingly sought striking down of the Constitution (Application to J&K Amendment) Order, 2019 and the J&K Reservation (Amendment) Ordinance, 2019.

The petitioners said that the order is ex-facie unconstitutional because the Constitution of India does not 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.

The State government for the purpose of Article 370 means “the Maharaja”, and/or the “Sadar-i-Riyasat” acting on the advice of the Council of Ministers, for the time being office, they said.

The 77th and 103rd Constitutional Amendment, which now forms part of Indian Constitution, were not admittedly hitherto applicable to the State of J&K and could not be therefore applied to the State of J&K without the “consultation” or “concurrence” of the State government.

“ Since after the proclamation of 20th of June, 2018, the assembly was firstly put in suspended animation and after some time it was dissolved and as on date there is no Council of Ministers, therefore, the Governor, notwithstanding the fact that he is no entity under Article 370 of the Constitution of India, without the advice of the Council of Ministers, was incompetent to give any concurrence to the proposal for issuing constitution (Application to Jammu & Kashmir) Order, 2019,” said the petition.

It added “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 said that 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 government.

The petitioners said that 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.

"It appears that the Constitution (Application to Jammu and Kashmir) Order, 2019 and Jammu and Kashmir Reservation (Amendment) Ordinance, 2019, have been issued to pave way for a greater constitutional damage to the State," it added.

The petitioners said there are already a number of petitions pending before the Supreme Court, which seek the striking down of Article 35-A of the Indian Constitution which has been inserted in the said constitution by virtue of Constitutional (Application to Jammu & Kashmir) Order, 1954.

They said it is possible that by using the mechanism, which has been adopted for issuing Constitutional (Application to Jammu and Kashmir) Order and J&K Reservation (Amendment) Ordinance, 2019, the respondents will do away with Article 35-A.

They said it is also possible that the respondents will amend any state law, including J&K Transfer of Property Act, for doing away with the requirement of being a permanent resident for acquiring any property in the state or applying for a job in any government department.

The impugned Constitutional (Application to Jammu and Kashmir) Order, 2019 and J&K Reservation (Amendment) Ordinance, 2019, having thus been conceived in fraud and delivered in deceit are, therefore, liable to be struck down to maintain the unique constitutional position of Jammu and Kashmir, the petitioners pleaded.

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