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Above: The two amendments by the centre could send wrong signals to the people of Kashmir/Photo: UNI

The centre’s extension of two constitutional amendments in J&K related to reservations has led to the charge that it is catering to its electoral ambitions. No central law can be extended there without the state legislature’s concurrence

By Pushp Saraf

The hue and cry in J&K over the manner in which the centre has extended the Constitution 77th Amendment (reservation in promotion for Scheduled Castes and Scheduled Tribes) and the Constitution 103rd Amendment (reservation for economically weaker sections of society) vindicates the oft-made remark that democracy is noisy. It is not targeted against the amendments per se. The aim is to caution the centre against adopting a similar modus operandi to dilute J&K’s autonomy guaranteed under Article 370 of the Constitution with privileges of its permanent citizens protected under Article 35-A.

A Press Information Bureau (PIB) release of February 28 makes no secret of the modality adopted by the centre: “The Union cabinet, chaired by the Prime Minister Narendra Modi has approved the proposal of Jammu & Kashmir government regarding amendment to the Constitution (Application to Jammu & Kashmir) order, 1954 by way of the Constitution (Application to Jammu & Kashmir) Amendment Order, 2019. It will serve the purpose of application of relevant provisions of the Constitution of India, as amended through the Constitution (Seventy Seventh Amendment) Act, 1995 and Constitution (One Hundred third Amendment) Act, 2019 for Jammu and Kashmir, by issuing the Constitution (Application to Jammu and Kashmir) Amendment Order, 2019 by the President under clause (1) of Article 370.”

Under the heading, “Background: Equity and Inclusiveness”, the release goes on to elaborate: “10% reservation for economically weaker sections made applicable in J&K also. This would pave the way for reserving state government jobs to the youth of J&K who are from economically weaker sections belonging to any religion or caste. It may be recalled that 10% reservation to economically weaker sections was introduced in rest of the country through the 103rd Constitution Amendment in January 2019. This will be in addition to such reservation available in Govt. of India jobs also; Benefit of promotion to Scheduled Castes and Scheduled Tribes, which include Gujjars and Bakarwals amongst others, has also been made applicable to the state of J&K. After a long wait of 24 years, the 77th Constitution Amendment of 1995 has now been applied to the state of J&K; People living near the international border have been brought at par with those living near the Line of Control for reservation in state government jobs by amending the Jammu and Kashmir Reservation Act, 2004 through an Ordinance. Earlier, the provision of 3% reservation was available only for youth living within 6 kms of LoC in J&K. Now, this provision will be applicable for people living near the international border also. This has been a long-pending demand of the population living near the international border, as they have been facing the brunt of cross border firing in J&K.”

The undue hurry shown by the central government in extending these amendments has exposed it to the charge of catering to its electoral ambitions with the objective of at least retai­ning its stronghold in the Jammu region.

In pursuance of the cabinet’s decision, a formal presidential order was issued on March 1. The cabinet had taken care to clarify that the order was being issued under Clause 1 of Article 370 which emphasises “consultation” and “concurrence” of the state government for the centre to make any laws there. In this instance, the governor, who is in charge of the administration following dissolution of the assembly and who has no council of ministers to advise him, had recommended the extension, thereby signalling the state government’s consultation and concurrence. Critics argue that the advice of the council of ministers is mandatory and that the state government means an elected government and not the governor who is a nominee of the president.

All hell broke loose after this. Major political parties—the National Conference (NC) and the People’s Democratic Party (PDP)—are already up in arms against what they call an assault on J&K’s special status. NC vice-president and former chief minister Omar Abdullah tweeted: “…blatantly unconstitutional order…Article 370 makes concurrence of Government of Jammu and Kashmir a condition precedent for extension of a Constitutional provision not falling under three subjects… The Government means an elected government. President cannot seek concurrence of Governor who is a representative or agent of President” (Three subjects referred to by Omar Abdullah are defence, communication and external affairs as mentioned in the Instrument of Accession).

In a party statement, senior NC leader Abdul Rahim Rather said that the decision is without jurisdiction and a blatant violation of Article 370: “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 and unacceptable.”

Another former chief minister, PDP president Mehbooba Mufti, too expressed anger by tweeting: “Ostensibly, using the Governor’s office seems to be a sinister move to further disempower the state. This will not be tolerated & the entire state will fight against this criminal and illegal move of GoI (Government of India)…Why is GoI adamant on adding fuel to the fire and letting the situation slip out of control? Why push Kashmiris to the wall? PDP is willing to work with like minded parties and people of the state to fight this battle…tooth and nail.”

Her party’s official reaction is: “Governor administration, which by design is interim arrangement, is stretching its mandate a bit too far. The concurrence of an elected, not nominated, government is a must for any amendment to the 1954 Presidential Order and thereby is in contravention to the spirit of Article 370.”

Sections of the intelligentsia have also reacted bitterly, describing the move as one step from doing away with Article 35-A which guards the special privileges of permanent residents of J&K and “diluting the state’s autonomy”, reducing Article 370 to “an empty shell”, something which veteran CPI(M) leader Yusuf Tarigami too has said.

On the other hand, Thupstan Chhewang, a two-time member of the Lok Sabha who recently resigned from Parliament and the BJP in protest against official indifference towards commitments made to his Ladakh constituency in the 2014 polls, believes that the extension of amendments would benefit a large population, including Gujjars and Bakarwals, who constitute a sizeable chunk. “Why should we deprive them on mere technicalities?” he wondered. He said that in the event of President’s Rule, Parliament exercises all functions of the state legislature, which, in any case, reviews and repeals a law on being reconstituted.

There are precedents galore of Union governments having acted likewise by amending the Constitution (Application to Jammu and Kashmir) Order, 1954. However, it is argued that in all but one case, there has been consultation with and concurrence of the elected state government. The only exception is Article 249 of the Constitution which was extended to J&K on July 30, 1986, when Governor Jagmohan was in command, empowering Parliament “to make laws with respect to any matter enumerated in the State List” on the strength of a Rajya Sabha resolution. What happened between 1990 and 1996 in the state is recent history. There was total breakdown of law and order in the Valley, in particular in the face of armed militancy, with the administration dormant and the NC, the premier political outfit, unable—almost unwilling as if it had lost the heart to fight—to rally despite being the prime political target of militants. The PDP was yet to make its mark, the Congress was never a reckonable force in the region and the BJP was virtually non-existent.

What would a government worth the name have done in the political vacuum prevailing then? President’s Rule continued uninterrupted for about seven years well beyond the constitutionally stipulated maximum of three years and it was possible with the centre invoking the same procedure it has done now.

With this background, many political concerns await cogent solutions:

(a) Why should a Union government rush with the extension of constitutional amendments instead of giving priority to reviving the state assembly by hold­ing elections?

(b) Why should state leaders nurse perpetual fears of unilateral abrogation of Article 370 and Article 35-A as long as these Articles are part of the Constitution and the procedure for altering or amending them is well prescribed? Why should they play the victims every time?

(c) It is widely known that the issue of Article 35-A is pending before the Supreme Court. Why should the concerned leaders not wait for the highest court’s verdict? Why should they go on raising dust?

(d)  What should a central government do if there is no elected state government either because political parties keep off elections, as has happened in the 1990s or as in the existing circumstances, and there is an urgency to extend a provision of the Indian Constitution?

At present, there is serious distrust between the Union government and top mainstream leaders of the country’s only Muslim-majority state. Much confusion is on that count.

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