Reservation Amendment Ordinance Challenged In HC 


SRINAGAR — The J&K High Court on Monday issued a notice to government of India and J&K government on a petition, seeking its directions to declare Jammu and Kashmir Reservation (Amendment) Ordinance 2019 and Constitution (Application to Jammu & Kashmir) Amendment Order 2019 as unconstitutional.   

Advocates Mohammad Ashraf Bhat and Adil Asimi, General Secretary and Joint secretary of lawyers’ body respectively, said they “genuinely believes” 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 on the approval of Union Cabinet without any power authority and competence.

The petitioners said Cabinet Secretary, on February 28 this year, 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 petitioners have challenged on the grounds that the Constitutional (Application to J&K) Order, 2019, 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. 

“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 added. 

They 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. “

“Article 357 also provides a mechanism whereunder Parliament can delegate its power to the President. It would however require the Parliament to pass an act delegating such power to the President. When such an act is passed by the Parliament it is only thereafter that the President gets the power to amend a State law. “ 

In 1992 also, when the State was under President’s Rule, Parliament passed J&K State Legislature (Delegation of Powers) Act, 1992, pursuant to which, the President made an amendment in J&K Public Safety Act. “In other parts of India, where a State was under President’s Rule, the Parliament had passed a Delegation of Power Act authorizing the President to enact, or amend a law. The UP State Legislature (Delegation of Power) Act, 1973; West Bengal State Legislature (Delegation of Power) Act, 1968; Madhya Pradesh State Legislature (Delegation of Power) Act, 1993; Tamil Nadu State Legislature (Delegation of Power) Act, 1976, are few examples which readily come to one’s mind,” the KHCBA said, adding, “It is also relevant to mention here that while the Indian Parliament in its Winter Session approved the President Rule in J&K in January, 2019, it did not pass any J&K State Legislature (Delegation of Power) Act. 

“The Parliament by doing no such thing, while it was in session, thus kept the power with itself and in absence of any such power, the Ministry of Law & Justice had no power to issue the J&K Reservation (Amendment) Ordinance, 2019. 

“The impugned Ordinance being therefore unconstitutional and without jurisdiction is also liable to be struck down.” 

The Proclamation issued by the President of India under Article 356 is an extra ordinary situation governed solely by Part XVIII of the Constitution of India and the only mechanism that can be resorted to amend a State Law is the one provided under Articles 356 and 357, it said. “The general provision of an Ordinance under Article 123 of the Indian Constitution or Section 91 of the State Constitution, as a mechanism to amend the State Act during a Proclamation issued under Article 356 is not applicable to such a situation. The powers conferred by Article 123 of the Constitution of India and those envisaged by Section 91 and 92 of the Constitution of J&K operate at different times for achieving different objectives,” Bar  said, adding, “The laws made during the President’s Rule are qualitatively and constitutionally altogether different and distinct from laws made through an ordinance. The J&K Reservation (Ordinance) 2019 having been maliciously issued by Ministry of Law & Justice is therefore liable to be struck down.”

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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