Has Article 370 been just breached? Mildly!

Even as the Home Ministry clarified that nothing with regards to Articles 370 and 35A has been changed, the Peoples Democratic Party has also very strong reacted to Cabinet decision. “Governor’s administration, which by design is interim in 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 Art 370”.

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Facsimile of the official statement on Union Cabinet decision of February 28
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Setting aside, for a while, the perennial fears and excitements about Articles 35A and 370 of the Constitution of India, as people of Jammu and Kashmir watched with concern what trajectory of current round of India-Pakistan military confrontation takes, something has just happened on the Centre-State relationship front which may have far reaching political consequences.

On Thursday afternoon, when the country rejoiced announcement of Islamabad’s intentions to release Wing Commander Abhinav, Kashmir heaved sigh of relief as war clouds appeared receding. But, almost at the same time, the Modi Cabinet approved something with relation to Jammu and Kashmir in a manner which has only one instance since the applicability of Article 370 in 1950.

The Cabinet approved the proposal of Jammu and Kashmir government 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.

This paves the way for giving benefit of promotion in service to the Scheduled Castes, the Scheduled Tribes and also extend the reservation of up to 10 per cent for “economically weaker sections” in educational institutions and public employment in addition to the existing reservation in Jammu and Kashmir.

This decision is not bad and raises no concerns. In fact, the beneficiaries, the state subjects of Jammu and Kashmir, have widely hailed the decision. The problem is the way the decision has been sought to be implemented -an apparent breach of the provisions of Article 370. There is only one instance of such a thing having happened in the past.

Is the Jammu and Kashmir Governor’s administration constitutionally competent to make such a recommendation? “Though the proposed Presidential Order by itself may not raise alarm, the method adopted is highly objectionable. Governor has no power to give concurrence to application of a Constitutional Provision. It is only an elected Government”, says former Chief Minister Omar Abdullah which touching upon nuances of Article 370.

The National Conference is seeking legal opinion and may like to mount a challenge to the Union Cabinet’s order in the Courts.

Even as the constitutional and judicial procedures leave a lot for interpretation, some legal experts, sufficiently aware of the nature of Centre-State relations as governed by Articles 370 in case of Jammu and Kashmir, believe that it is the Cabinet, not the Governor, is competent to offer concurrence for extension of a central law. 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.

A senior journalist with Indian Express who has fairly thorough knowledge of the special constitutional status of Jammu and Kashmir, Muzamil Jaleel says, “the Central government cannot amend 1954 presidential order on the recommendation of its own nominee. It must get consent of State government which means elected government. This order is in total violation of article 370”.

The last time when such a route was adopted to extend a central rule to Jammu and Kashmir was in 1986 and has since been challenged in the Courts. It was under Governor Jagmohan Malhotra when Article 249 of the Constitution of India was applied to the state of Jammu and Kashmir.

Two young National Conference leaders of that time, Abdul Rahim Rather and Mohammad Shafi Uri challenged the Governor’s concurrence and subsequent application of order in the High Court but a final decision is still pending.

Even as the Home Ministry clarified that nothing with regards to Articles 370 and 35A has been changed, the Peoples Democratic Party has also very strong reacted to Cabinet decision. “Governor’s administration, which by design is interim in 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 Art 370”.

In a threatening tweet late last night, former CM Mehbooba Mufti said, “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”

The beneficiaries of Cabinet decision, irrespective of the manner of implementation, have critically responded to the reaction of National Conference and Peoples Democratic Party.

Prominent tribal activist Javaid Rahi said, “we welcome the amendment granting reservation in promotion to tribal people, including Gujjars and Bakerwals who make 80 percent of ST in Jammu and Kashmir. They will be greatly benefited from this decision”.

Rahi, who runs Tribal Research and Cultural Foundation, and is known for aggressive Gujjar identity patriotism, said, “some upper caste people who are suppressing our rights since 1947 are unnecessarily crying and we know why they are doing this”.

 

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