On Monday, Rajya Sabha passed the Jammu and Kashmir Reservation Bill. Passed by Lok Sabha last week, the Bill partially amends a Presidential Order of 1954 in order to amend the state’s Reservation Act. The amendments were earlier effected through an ordinance after these had been approved by the Union Cabinet in February this year.
With the constitutional amendments, the benefits of reservation available to the residents along the Line of Actual Control (LAC) have been extended to residents living along the International Border (IB). This benefits residents in Jammu, Samba and Kathua.
Through the Presidential Order, the Cabinet applied the 77th Constitutional Amendment of 1995 to J&K, giving benefits of reservation in promotion to Scheduled Castes and Scheduled Tribes in government service. The Cabinet also applied the 103rd Constitutional Amendment of 2019 to J&K, which gave 10% reservation to Economically Weaker Sections among people in the general category.
While bringing the ordinance, the Union government said the constitutional amendments were recommended by the State Administrative Council (SAC) headed by J&K Governor Satya Pal Malik.
While no one in J&K has opposed the decision to provide benefits to SCs, STs and EWS, there has been opposition to the route taken by the Centre and its nominee the J&K Governor, on the ground that they “breached” Article 370 while issuing the amendment to the 1954 Presidential Order. The 1954 order is an executive order issued by the President under Article 370 to extend provisions of an Act of Parliament to J&K State, which can be done only with the concurrence of the state government.
The Constitution of India applies to Jammu & Kashmir by virtue of Article 370, which provides a mechanism for the way it applies. Article 370 defines state government as ‘the Maharaja’ and/or the ‘Sadar-i-Riyasat’ aided by a council of ministers. At the centre of the controversy is the question whether the Governor, in the absence of an elected government, has the authority to give consent to extend a law of Parliament and change the constitutional arrangement between J&K and the Union.
The issue of the Governor’s powers was defined by the Supreme Court in Mohammad Maqbool Damnoo versus State of J&K (1972). While dealing with the replacement of an elected Sadr-i-Riyasat with the Centre-appointed Governor, the court observed that a Governor is “head of government aided by a council of ministers”. “It is not as if the state government, by such a change (replacing elected Sadr-i-Riyasat with Centre-appointed 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”.
Three court petitions, including two fresh ones, have challenged the Centre’s ordinance issued in February this year. One of the main regional parties, National Conference, has challenged the amendment to the Presidential Order of 1954. Earlier, two lawyers had challenged the amendments in the J&K High Court. A petition of similar nature has been pending since 1986.
What regional parties say
Political parties in Jammu and Kashmir have termed the amendments “unconstitutional”. The regional parties contend that “concurrence” means the concurrence of an elected government, and not that of a nominated government, is a must for any amendment to the Presidential Order of 1954, and that this is thus in contravention of Article 370.
They contend that the government means an elected government and that the President cannot seek concurrence of the Governor because “the Governor is a representative of the President”.
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