Why the Centre’s Order on Job Reservation in J&K Led to Cries of ‘Constitutional Fraud’

Srinagar: No amendment made to the Constitution of India is applicable to J&K unless it gets concurrence from the elected government of the state, says former advocate general M.I. Qadri. So, when the Centre, on February 28, decided to quietly extend not one but two such amendments to J&K – which is presently under President’s rule – cries of ‘constitutional fraud’ and ‘attack’ on the state’s special status echoed on the streets of Srinagar.

Ever since then, the Valley – which spent a week in a state of mass hysteria before India and Pakistan carried out air raids against each other – has been witnessing protests, shutdowns and even calls for agitation to demand the rollback of the amendments: the extension of 10% job reservations for economically weaker sections (103rd amendment), which was introduced recently by the Centre; and the benefits of promotion in service to SC and ST categories (77th amendment, 1995).

The Union cabinet’s assent to these amendments – on recommendation of J&K’s governor – came at a time when the Supreme Court is set to hear a petition seeking the abolition of Article 35A, which gives special rights to permanent citizens of J&K.

While political parties have made it clear they don’t oppose the idea of reservations for the ‘deserving,’ the method adopted by the governor, in the absence of an elected government, has come under criticism.

There are fears that in an election year, the BJP-led central government is pushing for abrogating the state’s special status, and that these amendments are seen as the ‘first step’ in that direction.

The entire issue has generated controversy as it involved an amendment to the Constitutional (Application to Jammu & Kashmir) Order 1954. Both, the Constitutional Order and Article 370, define the special position of J&K and debars the Centre from extending any law directly to the state, as defined under the Instrument of Accession.

‘Blatant violation of Article 370’

Former law minister and senior National Conference leader Abdur Rahim Rather termed the amendments ‘dangerous and blatant violations’ of Article 370 of the Indian Constitution.

In a strongly-worded statement, Rather said there was no way the amendments could have been applied to J&K since they required approval from the state constitutional assembly, which ceased to exist after 1956.

‘Even if we assume that the concurring power of the state government continues to exist, the procedure to do so is provided in Article 370 itself,’ he said, insisting that only an elected government has powers to take such decisions.

What defines government in J&K?

The government means an elected government, chosen by people of J&K, former chief minister Omar Abdullah said, opposing the amendments and adding that the president cannot seek concurrence of the governor – who is only a representative or an agent of the president.

These views were echoed by Omar’s arch rival, the PDP. The party said concurrence of an elected, not nominated government (of the governor) was a pre-requisite for any amendment to the 1954 Presidential Order, describing the latest amendments as being in contravention to Article 370.

Rather explained it further. He said the definition of the state government was laid down in the Article 370. ‘The government of the state means the person for the time being recognised by the president as Maharaja of J&K acting on advice of council of ministers for the time being in office under the Maharaja’s proclamation dated 5th day of March, 1948.’

Rather said, it becomes ‘absolutely clear’ that the governor – a nominee of the Centre – ‘doesn’t fit in this definition (of the government) by any stretch of the imagination’ and hence he couldn’t have given the approval.

‘If he [the governor] does so, it will be a clear nullity,’ said Rather.

Governor’s powers

J&K is without an elected government since June 2018 when the BJP pulled out of the coalition with Mehbooba Mufti-led PDP, bringing down her government in dramatic fashion. The state was under the governor’s rule for the next six months before it came under president’s rule last December.

In the absence of an elected government, however, the governor is empowered to exercise the powers of the government. ‘But it is only an interim arrangement to run governance related matters and any of his concurrence on any subject (the constitutional amendments in the latest case) beyond his authority is brazen tinkering of the constitutional relationship of J&K with the union of India,’ argued political analyst Ashiq Hussain.

For noted lawyer Zaffar Shah, any proposal sent by the governor’s administration for the extension of the amendments has no legal legitimacy. He added that the question of utmost importance was if the governor, as agent of the president, could have made recommendations under Article 370.

‘If it is not questioned, it will open the door for the application of other constitutional provisions and can be dangerous insofar as Article 35A is concerned,’ Shah cautioned.

Debate over Article 370 & Article 35A

For years, successive regimes in J&K had been providing reservation in promotions – one of the two amendments now applied to J&K – without any constitutional or legal backing, much like the rest of India.

At the national level, this was challenged in the Supreme Court on the grounds that such benefits were violative of Article 16. The court struck down the practice. But, to undo the ruling, Parliament amended Article 16 to give constitutional cover to the practice in 1995 in the form of the 77th amendment.

The then state government opposed the application of this amendment, asserting that clause 4(a) of Article 19 was not applicable to J&K, though it continued to provide the reservation benefits.

A public interest litigation filed in the high court challenged these benefits and, subsequently, a division bench struck down reservation in promotions, observing that the 77th amendment was not applicable to J&K, few years ago.

‘The court struck it down on this ground,’ former high court judge Justice (retd) Hasnain Masoodi, who was part of the division bench, told The Wire.

Qadri said the amendments were yet another ‘attack’ on Article 370. Besides, these amendments are also seen in violation of the Instrument of Accession, which gives total sovereignty to the state government on all subjects except defence, foreign affairs and communication. The currency was added to the list of three subjects later.

While Article 370 grants a special position to J&K in the union of India, Article 35A empowers the J&K legislature to define the state’s permanent residents and exclusive privileges enjoyed by them, including the right to property, right to employment and right to settlement.

The Article 35A was introduced into the Constitution of India through a Presidential Order, which in itself was issued under Article 370. The Constitutional Order later became part of the J&K Constitution in 1956, after the constituent assembly passed the state constitution the same year.

Since then, all central laws have been extended to the state through Presidential Orders by modifying the 1954 Constitutional Order from time to time, including the recent modification.

Qadri said before the union cabinet’s decision last week, at least 47 Presidential Order have been issued since 1956 to extend provisions of the Constitution of India to J&K.

‘These all have contributed to the erosion of Article 370,’ said Qadri, citing the extension of GST to J&K in 2017 or the Prevention of Terrorism Act earlier (it was later repealed) as instances when the state’s autonomous character was ‘eroded.’

Rage in the Valley

Ever since the amendments were made applicable to J&K, the Valley has been brimming with anger. On Tuesday, the region shut again for the second time in less than a week to protests against a ‘ploy to dilute the state’s special position.’

Apart from mainstream parties, National Conference and PDP, high court bar association, Kashmir civil society and the business groups have in unison opposed the amendments.

‘We have given 15 days’ ultimatum to the government of India and the governor to withdraw these amendments, failing which appropriate public response will be initiated,’ chairperson, Kashmir civil society forum, Hameeda Nayeem, said at a seminar held by the group on March 3.

Qadri had a word of caution: ‘The extension of these amendments, particularly by the governor, is a very bad precedence. It sets the stage for a dangerous scenario in times to come as far as the state’s autonomous character, whatever of it is left, is concerned.’