It was a week when the Supreme Court was expected to hear the petitions challenging Article 35A of the Constitution and the special rights it gives the Jammu & Kashmir Assembly. The hearings never materialised, but the autonomy of J&K was tested in a different manner by the Central Government.
On Thursday, 28 February, the Union Cabinet extended the 10 percent reservation policy for economically weaker sections (EWS) to J&K. The EWS reservation, often termed an “upper caste quota”, was recently adopted across the rest of the country through a constitutional amendment on 12 January.
The Cabinet’s order also makes reservations for promotions in government jobs possible, which had been introduced in the rest of the country by a constitutional amendment in 1995.
The move has generated controversy since it needs an amendment to the Constitution (Application to Jammu & Kashmir) Order 1954, which along with Article 370 of the Constitution, reflects J&K’s special status and restricts the extent to which laws passed by Parliament can be extended to the state.
The best-known feature of the Constitution Order is Article 35A, which allows the state government to define permanent residents and restrict rights and privileges for non-permanent residents.
The problem is that such an amendment can only be introduced with the “concurrence of the Government of the State”, according to Article 370(1)(b)(ii). However, as we all know, the state Assembly in Jammu & Kashmir was dissolved on 21 November 2018, which means the new amendment only has the stamp of the Governor of the State, Satya Pal Malik.
But can the Governor’s concurrence be enough for making an amendment to the Constitution Order? And is it even possible to bring in a reservation policy like this in J&K, given the restrictions in Article 35A?
Governor is not the ‘Government of the State’
The National Conference (NC) and the People’s Democratic Party (PDP) have both come out to publicly state that the Governor’s consent isn’t sufficient, and so they will be challenging the amendment in court.
Senior National Conference leader Abdul Rahim Rather released a more detailed statement on the issue on 1 March, in which he termed the amendment a “dangerous and blatant violation of Article 370 of the constitution.”
Rather, a former J&K finance minister, pointed out that the extension of constitutional provisions not relating to the Instrument of Accession to J&K (such as reservations in jobs and education) is technically not possible since this requires the eventual approval of the Constituent Assembly of the State (as per Article 370(2)) – which was dissolved in 1956.
This leaves us with two arguments against the procedure followed to bring this amendment in the first place:
- That no such amendments can be brought in because there is no J&K Constituent Assembly to ratify them;
- That it hasn’t received valid “concurrence” of the government of the state.
The first argument is a bit tricky since this takes one back to the longstanding argument about how Article 370 was only meant to be a temporary measure (the heading is, after all, “Temporary provisions with respect to the State of Jammu and Kashmir”). There have been several amendments to the Constitution Order since 1956, which are considered to have force of law even though there was no ratification by the Constituent Assembly, so this argument is a bit pointless.
The second argument, however, has a lot more merit, and is the one that has been clearly made by NC leaders at the protest rallies organised against the amendment on 3 March (see details in the Kashmir Reader here).
So what exactly is wrong with the Governor agreeing to the amendment? After all, the Governor is exercising the powers of the state government, so he/she should have the power to provide concurrence to the amendment, logically speaking.
The answer to this lies in the very nature and purpose of Article 370: To allow greater autonomy for Kashmir in matters except defence, foreign affairs, finance and communications. This is what was agreed in the Instrument of Accession, and what the Delhi Agreement was supposed to crystallise.
Article 370 recognises that certain other constitutional provisions and laws can be extended to the state by the Centre, but it also acknowledges that this can’t be a unilateral decision. The people of J&K need to have a say in any such decision, since it impacts their special status – intuitively this should mean an elected government would need to concur with the same, not a functionary appointed by the Centre.
This is the view taken by senior Kashmiri advocate Zafar Shah in comments to Free Press Kashmir, where he has termed the move a “fraud on the Constitution”. According to him, the governor “has no power to give consent on behalf of the government of Jammu and Kashmir.” The governor is appointed by the Centre and the state is under President’s Rule at this point of time, which means any approval of the governor at this time suffers from “constitutional bias”.
He also points out that the amendment allows not just the 10 percent EWS reservation, but also reservations in promotions. These were introduced in 1996, and since then there have been four to five elected governments in J&K, who would have been the appropriate authorities to approve this move. “There was no intention of any elected government to implement this law here.”
What does the law say?
But is this what the law itself says? Is there any definition of “Government of the State” that would clear this confusion up?
Article 370 actually has a definition of “Government of the State”, though it doesn’t exactly clear up the confusion. According to that definition, the term meansL
“the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948:”
Now there is obviously no longer a Maharaja of J&K, so the question then becomes: Who is the modern-day equivalent? Is it the state Assembly or the Governor?
When the monarchy was abolished in J&K under the Delhi Agreement, the power of the Maharaja was transferred to the Sadar-e-Riyasat, an elected head of state. The post of Sadar-e-Riyasat was later renamed that of Governor, which would support the Centre’s move, one might say. However, this ignores the fact that the Sadar-e-Riyasat was not supposed to be a functionary of the Centre, but elected by the people – in fact the J&K High Court held the change to be unconstitutional, and left it to the state Assembly to create a new system for appointing the Sadar-e-Riyasat.
From a more holistic understanding, it therefore appears that the decision to amend the Constitution Order of 1954 has to be taken by an elected government, and so Governor Satya Pal Malik’s concurrence wasn’t sufficient. The J&K High Court is likely to take this view, given its past reasoning, though it is unclear what the Supreme Court will hold since this exact issue is unprecedented.
What About Article 35A?
The J&K political parties have been careful not to argue against the content of the amendment, and instead focussed on the procedural flaw. However, there is a strong argument to be made that the amendment (at least in relation to the EWS reservation) cannot be made at all.
This is because of what Article 35A says. The controversial provision, which has been challenged in the Supreme Court, allows the legislature of J&K to:
- Define who is considered a “permanent resident” of the state.
- Confer special rights and privileges on permanent residents, and restrict the rights of others to, among other things, state government employment and scholarships/aid.
Article 35A expressly says that any law passed by the state legislature on these issues cannot be struck down by the courts because it is inconsistent with the law elsewhere in the country.
The reservation policies introduced by the new amendment, however, encroach on these rights directly, since they have the ability to affect who can be given government jobs and scholarships.
The Centre could possibly argue that the amendment only allows the possibility of an EWS reservation, or SC/ST reservations in promotions, but these haven’t been mandated just yet, and any application would still be subject to Article 35A. If they make this argument, they could prevent this from being grounds for a successful challenge in the courts.
Regardless of the fate of the amendment in the courts, however, it does appear that this move by the Centre is a subtle way to probe the limits of the resilience of J&K’s autonomy, without resorting to drastic steps like abrogating Article 370 or Article 35A. However, this is unlikely to stop the move from becoming a political flashpoint in the state.
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