The Jammu and Kashmir High Court Bar Association, Srinagar (HCBA) on Friday said that J&K Reservation (Amendment) Ordinance, 2004 and J&K Constitution Amendment Order, 2019, approved by Union Cabinet is clearly a “fraud” on the provisions of Article 370 of the Constitution of India and therefore unconstitutional, liable to be rolled back.
The Bar Association while holding a daylong meeting at High Court Complex, Srinagar said that the Central government cannot amend the J&K Reservation Act, 2004, and Constitution (Application to J&K) Amendment Order, 1954, purportedly on the recommendations of State Administrative Council (SAC).
The Association remarked that the Governor of J&K is an “agent of the President of India” and cannot make any kind of recommendations for issuing any Ordinance or order. Earlier on 19 December 2018, the State came under Presidents rule in terms of Presidential Proclamation of Emergency and the President has assumed all the functions of the State and all powers vested or exercisable by the Governor.
The HCBA said that in terms of another notification issued by the President on 19 December 2018, the Governor has to exercise only those powers granted to him subject to superintendence, direction and control of the President, “making it further clear that the concurrence given by the Governor, in the instant case, is a concurrence from Ceaser to Ceaser’s wife.”
The Bar further said that from the constitutional perspective, the Ordinance, the Ordinance of creating provisions for reservations for economically backward members of the society, as well as Constitutional Application Order, 2019 is not what it purports to be but in essence and substance merely a cloak to extend to the State of J&K the constitutional amendments carried out in the Constitution of India by the Constitution (Seventy-seventh Amendment) Act, 1995 as well as the 103rd Amendment. The HCBA in a meeting said that the Constitution of India does not by its own force apply to the State of J&K and its provisions can be extended only in accord with the mechanism constitutionally provided and prescribed under Article 370 of the Indian Constitution.
Article 370 of the Constitution provides thus: –
“Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution, –
(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to-
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists, as, with the concurrence of the Government of the State, the President may by order specify.
*1&2Explanation: For the purposes of this article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat of Jammu and Kashmir acting on the advice of the Council of Ministers of the State for the time being in office;
*1[“Sadr-i-Riyasat” substituted for “Maharaja” vide Amendment made by the President on 17th of November, 1952] and 2[“Governor” substituted for “Sadr-i-Riyasat” vide Amendment made vide (Sixth Amendment) Act, 1965]
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order (46) specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State.”
Regarding declaring Jamaat-e-Islami (JeI) as an unlawful association by Centre government, Bar Association said that the move is illegal and unconstitutional. The Bar said that the move violates the fundamental rights of Muslim students to receive education in the schools run by JeI through Falah-i-Aam Trust. The HCBA further said that by banning the JeI and curbing the peaceful religious activities of the said organization is clearly an interference of the Centre government with the religious affairs of Muslims of Kashmir.