Parliament has passed the Bill that provides three per cent reservation for people in J&K living near the International border. The bill has paved way for them to get benefits of reservation in jobs, promotion and educational institutions, bringing them on par with those living in areas adjoining the Actual Line of Control (ALoC). However the reservation has become a source of deep contention in Kashmir. While various political and civil society groups are not opposing the reservation for the border areas, they are against the manner of its implementation. Such a reservation has entailed amendment in Article 370 and which is not possible under Governor’s rule. It is only when an elected government recommends or gives consent to an amendment in Article 370 or an extension of a central law to the state, can the president pass a Constitution Application Order which make such amendments or extensions of law possible.
In March, when the presidential order was issued to implement the reservation, a petition was filed in the J&K High Court challenging the extension of 77th and 103rd amendments of the Indian Constitution to the state to extend reservation to the border areas. The petition was filed by advocates Mohammad Ashraf Bhat and Adil Asimi on the grounds that the Constitution of India cannot be applied to Jammu and Kashmir in the absence of an elected government.
The lawyers pleaded that since the state was under the President’s Rule since December last year, there could be no concurrence of the state government which has to act on the advice of the council of ministers.
The reservation has also been opposed by the major regional political parties like National Conference and the PDP. They have argued that the concurrence of an elected, not nominated, government is a must for any amendment to Article 370. The NC leader and the former chief minister Omar Abdullah has already termed the reservation as politically motivated.
The fear in Kashmir is that the new reservation law could become the thin end of the wedge for the BJP set on interfering with the special constitutional position of the state within Indian Union. Once the precedent of seeking concurrence of the Governor for constitutional changes in the state is established, this could in future threaten the core constitutional safeguards for the state like Article 370 and 35A. People also hope that any such mechanism to interfere with the state’s constitutional position was liable to be struck down to maintain the unique constitutional position of Jammu and Kashmir. It’s certainly nobody’s case that the people living alongside International Border shouldn’t have reservation, but the people in the state are genuinely concerned about its long term constitutional implications for the state. And they would expect the Centre, therefore, to address these fears.
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