In Depth

‘Beyond Governor’s jurisdiction’: Experts, politicians react over amendment to 1954 Constitution Order

Amid rumours over the judicial fate of Article 35-A, the amendment in 1954 constitution order turned into another debate in Kashmir by Thursday evening. Now as Kashmiri unionists are mulling to fight it out in court, the government says the amendments don’t have any bearings on Article 370, 35-A.

When a senior Kashmiri journalist Ahmed Ali Fayyaz took to his twitter on Thursday evening to make sense of the two different Constitutional amendments which J&K Governor had recommended for application to the State last month, Omar Abdullah reacted swiftly, asking the scribe to hold his horses.

But soon as the debate began on New Delhi approved amendment to the 1954 Constitution (Jammu and Kashmir) order for “extending reservations and benefits to economically weaker sections”, even Omar changed his stance and said he’s mulling legal help to make better sense of the amendments.

Besides ban on Jama’at-e-Islami, the sudden amendment of 1954 Constitutional Order had become the second debatable subject in Kashmir by Thursday evening—even eclipsing the big news of captured pilot’s release by Pakistan.

According to the Press Information Bureau (PIB), “the Union Cabinet has approved the proposal of J&K Government regarding amendment to the Constitution (Application to J7K) order, 1954 by way of the Constitution (Application to J&K) Amendment Order, 2019.”

An information circulated by PIB reads that the amendment 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 and Third Amendment) Act, 2019 for J&K, by issuing the Constitution (Application to J&K) Amendment Order, 2019 by the President under clause (1) of Article 370.

“The Central government cannot amend 1954 presidential order on the recommendation of its own nominee [governor],” renowned Kashmiri journalist, Muzamil Jaleel reacted on social media. “It has to get consent of State government which means elected government. This order is in total violation of article 370. The previous time such a situation happened was during Jagmohan’s time and the challenge to it by A R Rather and Mohammad Shafi Uri is pending with High Court. This order has serious ramifications especially because previous State governments have never allowed this. This is a single step away from doing away with 35 A.”

Top Lawyer speaks

Prominent Kashmiri lawyer, Zafar Shah calls the move “a fraud on the constitution and a danger to J&K’s Autonomy”. Due to the absence of an elected government in J&K, the order cannot be implemented, advocate Shah said.

“It’s a fraud on the constitution,” Shah told Free Press Kashmir. “The governor has no power to give consent on behalf of the government of Jammu and Kashmir.

As on today, the state is under President’s rule and therefore, the recommendation is vitiated by constitutional bias, the advocate continued.

Advocate Zafar Shah.

“The decision of the central government is questionable. The present mechanism has a dangerous tendency. The methodology adopted has no legitimacy and if this is allowed to happen, it can have dangerous consequences so far as the state’s constitutional autonomy is concerned,” Shah added.

“It could be done only if there was an elected government here,” he reiterated. “After their recommendation, it was possible to amend it. However, the 77th amendment took place in 1996. Since then around 4 to 5 elected governments came into power. There was no intention of any elected government to implement this law here.”

According to the government’s official press release, the reservations will be extended up to 10 per cent to “economically weaker sections” in education and government jobs to people of Jammu and Kashmir. The amendment will also provide benefit in promotions to the Scheduled Castes and Scheduled Tribes, the release added.

However, advocate Shah says the merits cannot be discussed as the order cannot be implemented in the first place.

“The thing about Reservations, Schedule Caste and Schedule Tribe benefits is another thing. I am not of the wisdom of whether this constitution is right or wrong. That is a dangerous idea. What we must be concerned about is whether they can or cannot implement the amendment,” the ace advocate says.

Political reaction

While many believe that the decision will pave way for abrogation of Article 35-A, 370 of the Indian Constitution, that empower J&K to stay autonomous, NC leader Abdul Rahim Rather said that the decision is without jurisdiction and a 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 and unacceptable,” Rather said in a party statement.

Uniquely, the state of Jammu and Kashmir is the only one to have negotiated the terms of its membership of the Union, he said.

“Parliament’s legislative power over the state was restricted to three subjects …Defence, External affairs and Communications. It was mutually agreed between 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.”

Abdul Rahim Rather. (File Photo)

The President could, however, extend to it other provisions of the Constitution if they related to the matters specified in the Instrument of Accession, he said.

“For all this, 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 government’s authority to give the ‘concurrence’ lasted once the state Constituent Assembly was convened.

ALSO READ: Amid war hysteria, Kashmiri unionists raise a war cry over Article 35-A

“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,” he said.

“Thus, it becomes absolutely clear that the ‘Governor’ doesn’t fit in this definition by any stretch of 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.”

The former minister said that such type of actions on part of the central government is bound to prove counter-productive and further alienate the people of this troubled state.

Rather 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,” he said. “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.”

The former finance minister said that autonomy has remained, since the days of accession, the heartbeat of the people of state.

“Today we find the state has lost all semblance to autonomy. Its erosion is the primary cause for Kashmir discontent,” Rather added.

“Governor administration, which by design is interim in arrangement, is stretching it’s mandate a bit too far,” Peoples Democratic Party reacted over the issue. “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 Art 370.”

Party President Mehbooba Mufti, in a series of tweets said:

There is already lot of mistrust and chaos in the state and such decisions taken by the Governor administration won’t have positive impact on the overall situation, said comrade MY Tarigami.

“Isn’t it a reality that extensive autonomy guaranteed by the constituent assembly of India to J&K under Article 370, has been sufficiently eroded and made hollow?” he asked.

MY Tarigami. (File Photo)

“The extent of the misuse of Article 370 itself to encroach on the State’s powers can be seen from one of the measures taken in July 1986. The President of India made an order under Article 370 extending to the state Article 249 of the Constitution in order to empower Parliament to legislate on a matter in the state list on the strength of a Rajya Sabha resolution.”

This sort of overriding the state’s list can’t be done with regard to other states, he said.

“At any rate issuing constitution (Application to Jammu and Kashmir) amendment order while there is no elected government for state of Jammu and Kashmir in office is totally undemocratic and against letter and spirit of Article 370,” the Marxist leader said. “This is a part of systematic approach of the Union government for diluting the Autonomy of Jammu and Kashmir state under the constitution. By passing successive orders they have made Article 370 an empty shell only.”

Besides, it’s not the issue whether amendments in reservation Act are harmful or beneficial to the people of state but the question is that if governor has any moral or legal authority to do so in absence of an elected government, Er Rashid said.

“New Delhi must restrain from misusing the position of the governor and should not compel him to make inroads in the special status of the state constitution,” Rashid said.

Government response

These amendments do not affect who is covered as a Permanent Resident, the state government said in a statement.

“They do not bring West Pakistan Refugees under the scope of permanent residency. In the case of IB (International Border), only permanent residents will be able to get the benefits of this extension of reservation benefits as applicable to LoC (Line of Control) residents.”

In its meeting last week with the Union Government, the official statement said, governor-headed SAC had recommended the following amendments:

Amending the JK Reservation Act through an Ordinance to add the words “and International Border” after the word “LAC” so that the benefits of reservation available to residents of LAC are extended to IB. This would benefit residents in Jammu, Samba, Kathua.

Through a Presidential Order, apply the 77th Constitutional Amendment 1995 to J&K. This would give the benefit of reservation in promotion to Scheduled Castes and Scheduled Tribes in government service.

Through a Presidential Order, apply the 103rd Constitutional Amendment 2019 to J&K. This would give the benefit of 10% reservation to Economically Weaker Sections among the general category people.

Debate continues

“Governor cannot give the requisite concurrence to the Centre,” Muzamil Jaleel said. “In 1968, Supreme Court ruled that President can issue an order (amending 1954 order) under Article 370 only with the concurrence of the State government. Article 370 defines the State government to mean its Council of Ministers.”

Many other known Kashmiri journalists reacted over the issue on social media.

“It’s a very dangerous sign that Centre is accepting Governor’s proposal and treating it as concurrence of state government, as is required in terms of article 370,” journalist Nazir Masoodi, NDTV’s Kashmir bureau tweeted.

“Former Advocate General Jehangir Ganai [on amendment of 1954 Constitutional Order]: No bearing on Article 35-A right now but the manner this amendment has been made could pave way for other amendments targeting it,” Shuja-ul-haq, India Today’s Kashmir journalist tweeted.

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