SRINAGAR The Jammu and Kashmir high court on issued a notice to centre and state governments on a petition filed by National Conference general secretary Ali Mohammad Sagar, seeking directions to declare Jammu & Kashmir Reservation (Amendment) Ordinance 2019 as unconstitutional.
The notice was issued by a bench of Justice Tashi Rabstan after hearing counsel for Sagar who also seeks directions commanding the authorities not to give effect to the amendments till disposal of the writ petition.
The Court may also pass any other order or direction as it may deem fit and proper under the facts and circumstances of the case, he said.
In the petition, Sagar said that the Constitutional (Application to J&K) Order 2019 was 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, he says.
The State government for the purpose of Article 370 means the Maharaia’ and/or the -Sadar-i-Riyasat- acting on the advice of the Council of Minister, for the time being office. Thus any and every Presidential Order which applies any part of Indian Constitution of India to the State of J&K requires the mandatory ‘consultation’ or ‘concurrence’ of the State Govt meaning the Sadar-i-Riyasat acting upon the advice of the Council of Ministers, he says.
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 without the consultation and Concurrence of the State Government, he says.
Since after the proclamation of 20th of June 2018, the Assembly was first put to suspended animation and after sometime 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 of issuing constitution (Apllication to Jammu and Kashmir) order, 2019, he says further.
The Centre in February 28 approved an order for giving reservation benefits to economically weaker sections and for promotion in government jobs to SCs and STs in Jammu and Kashmir. The decision had been taken at a meeting of the Union Cabinet, chaired by Prime Minister Narendra Modi, Finance Minister Arun Jaitley said. The cabinet “approved the proposal of Jammu & Kashmir Government regarding amendment to the Constitution (Application to Jammu & Kashmir) Order, 1954 by way of the Constitution (Application to Jammu & Kashmir) Amendment Order, 2019,” said official release. “It will serve the purpose of application of relevant provisions of the Constitution of India, as amended through the Constitution (Seventy Seventh Amendment) Act, 1995 and Constitution (One Hundred and third Amendment) Act, 2019 for Jammu and Kashmir, by issuing the Constitution (Application to Jammu and Kashmir) Amendment Order, 2019 by the President under clause (1) of Article 370,” it had said. The Constitution (Seventy Seventh Amendment) Act, 1995 provides for reservation in promotion for the Scheduled Castes and the Scheduled Tribes, while the Constitution (One Hundred and third Amendment) Act, 2019 provides for 10 per cent reservation in education and government jobs to economically weaker sections.