Three weeks after President Ram Nath Kovind issued an executive order amending The Constitution (Application to Jammu and Kashmir) Order, 1954 to extend the provisions of the 77th and 103rd Amendments to the state, the Centre’s move has been challenged in the Jammu & Kashmir High Court.
The executive order was issued on March 1, the day after the Union Cabinet approved the proposal of the J&K Governor’s administration to amend the 1954 Order. The Centre said the amendment “will give benefit of promotion in service to the Scheduled Castes, Scheduled Tribes, and also extend the 10 per cent reservation for economically weaker sections in educational institutions and public employment”.
Major J&K parties said the order violated Article 370 — the provision that regulates J&K’s relationship with the Union. On Monday, two lawyers challenged the power of the Governor to make the recommendation without the concurrence of the state government, and pleaded that The Constitution (Application to Jammu & Kashmir) Amendment Order, 2019, and The Jammu and Kashmir Reservation (Amendment) Ordinance, 2019, be struck down.
The 1954 Presidential Order
J&K negotiated the terms of its entry into the Indian Union. When Maharaja Hari Singh signed the Instrument of Accession on October 26, 1947, J&K gave up control over only three subjects: Defence, Foreign Affairs, Communications. A separate Constituent Assembly of J&K was planned to frame the J&K Constitution, and to work out J&K’s constitutional relationship with New Delhi.
Under Article 370, which was part of the Indian Constitution at its commencement on January 26, 1950, only two articles apply to J&K: Article 1, which defines India, and Article 370 itself. Article 370 provides that other provisions of the Indian Constitution can apply to J&K “subject to such exceptions and modifications as the President may by order specify”, and with the concurrence of the state government.
Explained: Understanding Articles 370, 35A
State government was defined as “the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office”. The decisions to extend the provisions of the Indian Constitution other than those specified in the Instrument of Accession, however, had to be ratified by the J&K Constituent Assembly.
But the J&K Constituent Assembly was yet to be set up, and the Centre wanted to extend a few provisions of the Constitution to streamline J&K’s relationship with the Union. Thus, a Presidential Order was issued on January 26, 1950 itself, with the state government’s concurrence. On November 5, 1951, J&K’s Constituent Assembly was convened.
The 1950 Order was replaced by The Constitution (Application to Jammu and Kashmir) Order, 1954. This Order, while applying to J&K provisions of Part-III of the Indian Constitution that relates to fundamental rights, introduced Article 35A — which protected laws passed by the state legislature of J&K in respect of permanent residents from any challenge on the ground that they violated any of the fundamental rights.
This order was ratified by the Constituent Assembly that also framed the J&K Constitution, before dispersing on November 17, 1956.
What happened afterward
This 1954 ‘mother order’ had the requisite concurrence of both the state government and the J&K Constituent Assembly. Subsequently, 42 Presidential orders have been issued — all amendments to the 1954 mother order. But none of these amendments to the 1954 Order have fulfilled the requirement of ratification by the J&K Constituent Assembly. The Centre has argued that an elected state government’s consent is enough.
Through these Presidential orders, successive central governments have extended 94 out of the 97 entries in the Union List, and 26 out of the 47 in the Concurrent List to J&K, and made 260 out of the 395 Articles of the Indian Constitution applicable to J&K. This list does not include The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, the GST Acts, and the two constitutional provisions that were extended on March 1.
Views of the Supreme Court
In Prem Nath Kaul vs The State Of Jammu & Kashmir (1959), a five-judge Constitution Bench said “the Constitution-makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself”. A decade later, the court ruled that (Presidential) orders could still be made through Article 370 (Sampat Prakash vs State Of Jammu & Kashmir, 1969)
In 1972, the court, while ruling on the replacement of the elected Sadr-e-Riyasat of J&K by a Governor appointed by the Centre, said the Governor is “head of government aided by a council of ministers”, and “it is not as if the State government, by such a change (replacing the Sadr-e-Riyasat by the Governor) is made irresponsible to the State Legislature… There is no question of such a change being one in the character of the government from a democratic to a non-democratic system”. (Mohd Maqbool Damnoo vs State Of Jammu And Kashmir, 1972)
Governor and the 1954 Order
Has the Centre issued an amendment to 1954 Order with the consent of the Governor’s administration earlier?
In 1986, an amendment to the 1954 Order issued with the concurrence of Governor Jagmohan administration extended to J&K Article 249 of the Indian Constitution, which describes the power of Parliament to legislate, in the national interest, even on matters in the State List. National Conference leaders A R Rather and Mohammad Shafi Uri challenged the order in the J&K High Court. “The petition is still pending. It was never listed for a hearing,” Rather said.
Amendments were made to the 1954 Order during Governor’s Rule in 1993 and 1994 as well. These orders were issued to extend the duration of President’s Rule in J&K.
The latest order has the consent of the Governor without the requisite aid and advice of the Council of Ministers. In a situation of Central rule, the Governor acts only as a nominee of the Union government and does not meet the definition of state government as laid down by Article 370 and the Supreme Court.
Major J&K parties have always opposed the amendments to the 1954 Order without ratification by the Constituent Assembly of the state. The Centre could do it because the SC allowed it. The opposition in J&K has been to the route taken by the Centre, and not to the laws themselves.