K B Jandial
While conceding that the recent Presidential order issued under Article 370 is a deft political move of Modi Govt on the eve of Lok Sabha election but to call it a “constitutional fraud” or ” violation of Article 370″ is in fact, a poor understanding of constitutional law besides politicizing it. On March 1, 2019, most of the media reported that the President has issued Ordinance giving benefit of reservations to certain categories of the people of Jammu and Kashmir “by amending a clause of the contentious Article 370, which gives special status to the state”. It was a patently wrong reporting that also agitated the Kashmiri political leadership and civil society to spread rage in the Valley as they all hold Article 370 inviolable.
Straight Talk
The fact is that the Presidential order didn’t amend Article 370 nor there was any need for it to extend constitutional provisions to J&K. For all those including Kashmir based political parties who are crying hoarse against it and dubbing it “unconstitutional” and threatening mass agitation need to understand the law before challenging it. Actually, it was the Presidential order of 1954 that was amended which cannot be construed as amendment of Article 370. Yes, there could be major political issues attached to it but not its legality.
On February 28, 2019, the President of India, exercising power vested in him by Article 370 Clause 1(d) of the Constitution of India, signed the Constitution (Application to Jammu & Kashmir) Amendment Order, 2019 by virtue of which para two of the Constitution (Application to Jammu & Kashmir) Order, 1954 was amended. It extended to the State of J&K two of the amended provisions of the Constitution of India which Article 370 provides for. The provisions made applicable to J&K are the Constitution (Seventy-Seventh Amendment) Act, 1995 and Constitution (One hundred and third Amendment) Act, 2019.
The Presidential Order reads “In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President with the concurrence of the Government of State of Jammu and Kashmir, is pleased to make the following Order:-
1. Short title and commencement.-(1) This Order may be called the Constitution (Application to Jammu and Kashmir) Amendment Order, 2019.
(2) It shall come into force at once.
2. Amendment of paragraph 2.-In paragraph 2 of the Constitution (Application to Jammu and Kashmir) Order, 1954, in the opening portion, for the words, brackets and figures “and the Constitution (Sixty-first Amendment) Act, 1988”, the words, brackets and figures “the Constitution (Sixty-first Amendment) Act, 1988, the Constitution (77th Amendment) Act, 1995 and the Constitution (103th Amendment) Act, 2019″shall be substituted. C. O. 48.
RAMNATH KOVIND
PRESIDENT”
The second paragraph of the Constitution (Application to Jammu and Kashmir) Order, 1954, includes the titles of the Constitutional Amendments Acts that have been made applicable to J&K under Article 370. It reads “The provisions of the Constitution as in force on the 20th day of June, 1954 and as amended by the Constitution (Nineteenth Amendment) Act, 1966, the Constitution (Twenty-first Amendment) Act, 1967, section 5 of the Constitution (Twenty-third Amendment) Act, 1969……….. sections 2, 3 and 6 of the Constitution (Fifty-second Amendment) Act, 1985 and the Constitution (Sixty-first Amendment) Act, 1988 which, in addition to Article 1 and Article 370,shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:”
Below it are Articles of the Constitution including Constitutional amendments which stood extended to J&K State with exceptions and modifications as per the mandate of Article 370. In this list, Constitution (Seventy-seventh Amendment) Act, 1995 and Constitution (One Hundred and Third Amendment) Act, 2019 have been added. The 103rd Constitutional Amendment relates to grant of 10% reservation for economically weaker sections in the State Government jobs to the youth of J&K belonging to any religion or caste while the 61st Constitutional Amendment extends benefit of promotion to SC & ST in all State Govt services.
Besides, another category of people living near the International Border in the State in the existing quota of 3% reservation in State Govt jobs for those living within 6 kms of LoC by amending the Jammu and Kashmir Reservation Act, 2004. This amendment has been effected through an Ordinance. Its rationale is to treat all residents within the prescribed belt all along the border with Pakistan as people living along IB (earlier left out) too are facing the brunt of Pakistan firing as of LoC. It is difficult to understand why the Governor during Governor’s Rule didn’t amend it to “do justice” with them. This opens up to the criticism of electoral gain in Jammu, Samba and Kathua districts as has been done on the eve of elections.
After 24 years, the 77th Constitution Amendment of 1995 has now been applied to the State of J&K. It inserted clause (4A) of Article 16 of the Constitution of India. Clause (4A) provides for benefit of promotion in service to the Scheduled Castes and the Scheduled Tribes. Various non-SC/ST “biradari” Sabhas in Jammu had launched a strong movement against extension of this Constitutional amendment to J&K under the banner of “Arakshan Virodhi Manch” as it perceived to be harsh on non- SC/ST employees as it gives two reservations to these categories of employees and the all-State Govts didn’t give concurrence as it didn’t suit Kashmiri leadership also. But eyeing on Lok Sabha election, Modi Govt did what was resisted for 24 years. But will BJP get substantial SC votes in this election especially when a prominent former bureaucrat & Minister and popular SC leader, B R Kundal is fighting for Jammu-Poonch constituency on NC ticket with possible backing of congress (if alliance is stitched). He has been tipped for this seat by Farooq Abdullah with a hope of consolidating SC votes besides assured Muslim votes in Rajouri and Poonch. Even if non SC/ST Govt servants are sore over this double reservation but it would not influence their voting pattern.
Politics apart, none of these provisions are going to give immediate benefits to the eligible people as extension of Constitutional Amendments/ Ordinance has prospective effect. This would not affect already advertised jobs. Moreover, the Ordinance for inclusion of youth of IB in 3% reservation in State Govt jobs has only six months’ life and has to be substituted by a formal amendment by the legislature. So, the people will not get any benefit before elections, for which it was designed. These are only “political lollypops” to hoodwink people.
Prior to this decision, the Governor headed State Administrative Council had recommended to the Centre extension of these Constitution Amendment Acts (amounts to concurrence under Article 370) and one amendment in the State law through an ordinance. This is strictly as per the Constitution. Since the State is currently under President Rule, the legislative powers of the State are vested in the Parliament and as it is not is session, important legislative business is conducted through promulgation of ordinance. There is nothing wrong in it.
One of the major contentions of the Kashmir political parties is that the Governor being the representative of the President, cannot give ‘concurrence’ as required under Article 370 1(d). Even the Kashmir Bar has claimed that the concurrence has to be accorded by the elected Govt and not by the Governor. It is the argument of many that the Government means ‘elected’ Government and not the administration (Govt.) headed by Governor competent to give ‘concurrence’. The word elected is not in the Article 370. What is the Government? The Oxford dictionary describes the Government as “the group of people who governs a State” or “the system by which a State or community is governed”. The Governor or President Rule too is a Government envisaged by the Constitution itself, both of J&K and India.
The Constitution of J&K makes J&K Governor a very important constitutional authority and allows him to “assume all or any of the functions of the Government of the State” though a Proclamation in the event of “failure of constitutional machinery in the State” under Section 92. So, he is the Govt under J&K Constitution. A careful reading of Section reveals that the Governor has much more power than the ‘elected’ Chief Minister and his Council of Ministers. The Governor assumes the powers of the Legislature including enacting laws and passing budget which the CM & Council of Ministers didn’t have. Yes, these powers are exercised by him only during Governor’s Rule of six months but it shows that the Constitution puts J&K Governor above everyone except the Judiciary. And under subsequent President’s rule, the legislative powers are, however, transferred to the Parliament and executive powers to the President that are exercised by the Governor under his control.
Article 370 doesn’t make a distinction between the constitutional Government (Governor or President Rule) and political/ elected Govt. While it does defines Govt as “person recognised by the President as Governor (earlier Maharaja) acting on the advice of Council of Ministers” but doesn’t talk about the eventuality arising out of “failure of Constitutional machinery” in the State necessitating imposition of Governor or President Rule. In that emergency situation the Governor acts on the advice of nonpolitical Advisors constituting State Administrative Council replacing Council of Ministers. Moreover, there are precedents of such concurrence given by the Governor headed State Government like extension of Article 356 to J&K with exceptions and modifications in nineties beyond three years, year after year, up to seven years from July 18, 1990. So, calling the present extension of two Constitional Amendments to J&K as constitutional “fraud” or violation of Article 370 is motivated and spreading rage on it in Kashmir is most unfortunate.
(feedback:kbjandial@gmail.com)
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