Under Article 370, constitutional provisions of India can bemade applicable to Jammu and Kashmir only with the concurrence of an electedgovernment, legal experts say.
“The amendment carried out under president’s rule shall remaina stillborn legislation that is legally non-est. The amendment is a fraud onConstitution,” said a legal expert.
Noted advocate ZA Shah told Greater Kashmir that anyproposal sent by governor’s administration is a stillborn proposal.
“It has no legal legitimacy. The action is not purported bythe Constitution,” Shah said.
The government of India Thursday approved the proposal toextend Constitution 77th amendment (reservation in promotion for the scheduledcastes and scheduled tribes) and Constitution 103rd amendment (reservation foreconomically-weaker sections of society) to J&K.
The concurrence for extending these amendments was given bythe governor Satya Pal Malik, after the state administrative council (SAC)approved the proposal.
“The state is under the President’s rule. There is noelected government. The governor’s government cannot make any recommendationfor application of any constitutional provision of India to the state of Jammuand Kashmir,” advocate Shah said.
Under Article 370, he said, every constitutional provisionof India can be made applicable to Jammu and Kashmir only with the concurrenceof an elected government and not otherwise.
“The 77th amendment made in the Constitution of India was inthe year 1996. No elected state government till date asked the centralgovernment to apply it to the state. The said amendment protects reservation ofthe schedule caste and schedule tribe employees in the matter of the promotionand seniority,” he said.
“No state government intended to protect schedule caste andschedule tribe category employees in the matter of the promotion. Such benefitwas available at the entry level in the government service,” he added.
The senior advocate said the amendment sought to be appliedare likely to benefit to schedule tribe employees of Jammu province andschedule tribe employees of Ladakh division.
“Similarly under 103 amendment the benefits are intended foreconomic and weaker sections of the society,” he said.
Shah said the question of utmost importance is if theJ&K governor, as the agent of the President of India, can makerecommendations under Article 370 notwithstanding merits of therecommendations.
“If it is not questioned it will open door for applicationof other constitutional provisions and can be dangerous in so far as Article35A is concerned. The consent given by the governor’s government needs to bewithdrawn,” he said.
Pointing out that it is responsibility of all thestakeholders to work out strategies, both legal and political, against theamendments so that the state’s constitutional autonomy is protected, Shah said:”In my view the amendments are questionable both on constitutional andnon-constitutional grounds. They can be challenged before the court of law.”
Constitutional expert and senior advocate Syed TassaduqHussain echoed Shah.
“Once the president’s rule is promulgated, the stategovernment is effaced. One can recallthat governor Satya Pal Malik publicly avowed that the functions of ChiefMinister are vested in him. He has accurately summed up the legal positionbecause in president’s rule there is no state government. The functions of the legislature andexecutive are vested with the president of India. President of India has authorisedthe governor to act on his behalf, hence every act of the governor in the eyesof law is the act of the president of India,” the senior advocate said.