Former finance minister and senior National Conference leader, Abdul Rahim Rather has strongly reacted to the decision taken by the union cabinet on February 28, 2019, regarding amendment to the Constitution (Application to Jammu and Kashmir) Order,1954 by way of the Constitution (Application to Jammu and Kashmir) Amendment Order, 2019.
Calling the decision sans jurisdiction Rather said it was a dangerous and blatant violation of Article 370 of the constitution. We are not against the interests of the section of population sought to be benefitted through this amendment but the method adopted to achieve this goal is objectionable, unacceptable.
“Uniquely, the state of Jammu and Kashmir is the only one to have negotiated the terms of its membership of the Union,” he said in a statement.
He said that Parliament’s legislative power over the state was restricted to three subjects: Defence, External Affairs and Communications. It was mutually agreed between the government of India and the state in the year 1949 that “It will be for the Constituent Assembly of the State when convened, to determine in respect of what other subjects the state may accede.”
“The President could, however, extend to it other provisions of the Constitution if they related to the matters specified in the Instrument of Accession. For all this, the only consultation with the state government was required. If other constitutional provisions and union powers were to be extended to the state of J&K, the prior ’concurrence ‘of the state government was required. Even that concurrence alone did not suffice. It had to be ratified by the state’s Constituent Assembly. Article 370(2) says “If the concurrence of the government of the state be given before the Constituent Assembly for the purpose of framing the constitution of the state is convened, it shall be placed before such Assembly for such decision as it may take thereon.”
Rather added that the state governments authority to give the ‘concurrence’ lasted once the state’s Constituent Assembly was convened. It was an ‘interim’ power. Once the Constituent Assembly met, the state government couldn’t give its concurrence. Still less, after the Assembly met and dispersed in the year 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. The Government which was given concurring power is defined in Explanation to clause(1) of Article 370 as follows:
“For the purpose of this Article, the Government of the state means the person for the time being recognised by the President as the Maharaja of J&K acting on the advice of Council of Ministers for the time being in office under the Maharaja’s proclamation dated 5th day of March 1948”. Thus, it becomes absolutely clear that the ‘Governor’ doesn’t fit in this definition by any stretch of the imagination. How can a Union Government’s own appointee give ‘Concurrence’ to apply any provision of the Indian Constitution to the state? If he does so, it will be a clear nullity.
He said that such type of actions on part of the central government are bound to prove counterproductive and further alienate the people of this troubled state.
He said that the autonomy granted to the state at the time of accession was unconstitutionally and illegally eroded from time to time. Right till the Delhi agreement of 1952, the state didn’t accept any provisions of the constitution of India other than those agreed to in the Instrument of Accession and retained its autonomy. The pace of erosion of state autonomy from 1953 onwards can be gauged from a perusal of a long list of constitution orders applying various provisions of the Indian constitution to the state every now and then.
Rather said that autonomy has remained, since the days of accession, the heartbeat of the people of the state.
“Today we find the state has lost all semblance to autonomy. Its erosion is the primary cause for Kashmir discontent,” Rather added.