Reserved Judgement

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A landmark judgment by a Division Bench is path-breaking as it sees merit marred by reservations in promotions done in violation of the constitutions. The government requires courage to uphold merit, state’s constitutional exclusivity albeit at some political costs, reports Tasavur Mushtaq

High-Court-Complex-Srinagar

On October 9, 2015, High Court division bench comprising Justices Hasnain Masoodi and Janak Raj Kotwal ruled that there would be no reservations in the promotions of government employees. The ‘landmark judgment’ struck down section 6 of J&K Reservation Act 2004, and Rules 9, 10 and 34 of J&K Reservation Rules 2005, observing these are ultra virus to Articles 16 of India’s Constitution.

With this judgement, petitions filed by various employees aggrieved over promotion of their juniors from reserved categories in violation of seniority norms were disposed off. Petitioners’ plea was clear: Under impugned reservation rules, the reserved category employees were appearing at higher place in roster, and were getting promotion ahead of their general category colleagues.

But for the bench the issue was slightly complex: Whether Supreme Court Judgement (Indra Sawhney v/s Union of India, 1992 Suppl (III) SCC 210) prohibiting reservation in matters of promotion can be enforced in absence of the applicability of Article 16 (4A) of the Constitution of India to the J&K?

The other plea by petitioners was that reservation in promotions offends Articles 14 and 16 of India’s Constitution. They further pleaded that ‘Article 16 (4A) added by 77th Constitutional Amendment Act, 1995, would not legitimise course followed by the government in as much as amendments made are not applicable to J&K in exercise of powers conferred by Clause 1 of Article 370, adds proviso to Clause (2) of Article 368 in its application to J&K, providing that no amendment is to have effect in relation to J&K unless applied by a Presidential Order. They believe clause (4A) of Article 16 would not be applicable to J&K.

Reservation Act and Rules: The High Court Verdict

Respondents insisted that Reservation Act and Rules are protected under clause (4A), Article 16, thus orders impugned in writ petitions are valid and beyond challenge.  They argued that reservation is restricted to 22 percent of all promotional vacancies and should not be struck down because various categories lack adequate representation in the government services.

Justice-Janak-Raj-Kotwa

Justice-Janak-Raj-Kotwa

The other plea was that reservation in promotions is only up to level of Deputy Secretary, so the practice in vogue lacks any impact promotion to higher posts. In certain cases, they insisted, the positions were de-reserved for the lack of candidates from the reserved categories.

The verdict was hugely based on J&K’s ‘special’ character. During arguments, P L Raina insisted that J&K as a ‘special state’ acceded to India but did not merge in it and retained its distinct and special status. To buttress his argument, Raina relies solely on Article 370.  Seema Shekhar, representing one group of respondents, did not controvert petitioners stand but insisted that government was satisfied that Reserved Categories are not adequately represented at different levels in government.

Justice-Hasnain Masoodi

Justice-Hasnain Masoodi

However, Sunil Sethi, appearing for reserved categories (private respondents) insisted that as J&K in terms of Article 1 Constitution of India is part of territory of India, amendments made to India’s Constitution would be ipso facto applicable to it. Sethi stated that as Article 16 of the Constitution stands already applied to J&K by the Constitution (Application to J&K) Order 1954, subsequent amendment to Article 16 by adding Clause (4A) in Clause (4B) would be applicable to J&K even in absence of a Presidential order under Article 370.

The petitions and the subsequent argumentation raise number of questions for the bench:

  1. a) Why Constituent Assembly was convened and separate Constitution framed for the State, unlike other princely states.
  2. b) Why not all the provisions of Constitution and the subsequent amendments are, like other States, applicable to J&K?
  3. c) Whether Article 370, being a temporary provision, lost its force once J&K Constitution was framed by its Constituent Assembly and therefore, can no more be used by the President to modify a provision of the Constitution in its application to the State?
  4. d) Whether expressions “exceptions and modifications” in Sub clause (d) Clause (1) of Article 370, limit power of the President to minor changes or alterations in the provision of Constitution on their application to J&K and not to “amend” such provision – add to, omit or abrogate such provision?

To answer the intertwined questions, the bench went through the constitutional history of J&K starting with August 15, 1947 when J&K regained its sovereignty on the lapse of British Paramountcy with enactment of Indian Independence Act 1947 and subsequent emergence of India and Pakistan. Cabinet Mission Memorandum of May 12, 1946 made it clear as regards “States Treaties and Paramountcy” and Statement of Viceroy of May 16, 1946, stating that “Paramountcy can neither be retained by the British Government nor transferred to the new Government.” This gave rulers power to decide future of their state.

The subsequent tribal raids led ruler to accede to India on October 26, 1947. But unlike accession of other Princely states, there is mention in paras 4 and 7 of Instrument of accession which made sufficiently clear that ‘J&K was to stand on a different pedestal and to be given distinct and different, status as regards constitutional powers, it was to enjoy after accession.’

“My Government have decided to accept the accession of Kashmir State to the Dominion of India,” Governor General Lord Mountbatten said in his reply. “In consistence with their policy that in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with wishes of the people of the State, it is my Government’s wish that, as soon as law and order have been restored in Kashmir and its soil is cleared of the invader, the question of state’s accession should be settled by a reference to the people.”

Referring to Instrument of Accession and other correspondence, the verdict observes that “Article 370, notwithstanding its title showing it a ‘temporary provision’ is a permanent provision of the Constitution. It cannot be abrogated, repealed or even amended as mechanism provided under Clause (3) of Article 370 is no more available. Furthermore, Article 368 cannot be pressed into service in this regard, in as much as it does not control Article 370 – a self contained provision of the Constitution.”

“In terms of Proviso to Clause (2), Article 368 no amendment made to the Constitution is to have effect in relation to the State, unless applied by the order of the President under Clause (1) of Article 370,” reads the verdict.

The bench, repelling the argument that expression “exception and modification” would not include amendment or alteration and alteration made in Article 81 in application to J&K, amounted to “amendment” and therefore not permissible.

Analysing various judgments, the bench concludes that “the State continues to enjoy special status to the extent of limited sovereignty retained by the State. The limited sovereignty or special status stands guaranteed under Article 370 of the Constitution – only provision of the Constitution that applied to the State ex-propriogorige or on its own. The only other Constitutional provision made applicable by Article 370 of the Constitution to the State is Article 1. No other provision of the Constitution as provided under Article 370 (1) would be applicable to the State except, by Presidential order in consultation with the State in case the provision is akin to subjects delineated in Instrument of Accession and with concurrence of the State, in case it does not fall within ambit of Instrument of Accession.”

On Article 16, the judgment observes that it mirrors principle of equality before law and equal protection of laws guaranteed under Article 14 of the Constitution. “Petitioners are aggrieved of denial of opportunity in the matter of their promotion to the next level and discrimination on the grounds not permissible under law,” the verdict reads. “The question arises as to whether such classification is reasonable classification based on intelligible differentia and having close nexus with object sought to be achieved or it offends Constitutional guarantee embodied in Article 16 of the Constitution.”

J&K has reserved 22 percent of positions in jobs and promotions: four percent for SCs, five for STs, ten for backward areas, two from border areas and one percent for WUPC.

The bench left to executive to “devise a procedure to identify the backward classes”. But it ruled that “reservation made in terms of Section 6 of Reservation Act and Rules 9, 10 and 34 of the Reservation Rules is invidious and unconstitutional on this ground as well.”

The verdict is snowballing into a political issue. Certain political class do not want to let reservation go. “Politicians opposing this significant judgment fear they will lose their vote bank,” said Syed Shameem, who heads J&K General Category Welfare Forum.

“This is a glaring example of the failure of the state government to protect its own laws,” said B R Kundal, a SC Congressman and a retired Chief Secretary, who was the brain behind the formation of state’s reservation rules. “The government has failed to perform its duty.” Gujjar activist Javaid Rahi says the “tribal leaders” will approach the Supreme Court.

In assembly, the government-linked its response to the receipt of an “official order”. Since then, the order was read by Forty-seven thousand people on Kashmir Life website. The law ministry might still be waiting for the order from High Court, barely 150 meters away.

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