The 103rd amendment to the constitution ofIndia granted reservation to Economically Weaker Section of society, but forKashmir the case is different. Here a vast majority of Backward Communitiescannot apply for EWS certificate because people are getting a certificate namedRBA (which is applicable only at J & K level and not at Central level).Despite their extreme backwardness in economic sphere , the people are left outfrom their fundamental rights due to legal and administrative hurdles.
What the issue is?
Jammu and Kashmir Reservation Act 2004provides reservation to three type of communities viz; STs, SCs and OBCs(centrally listed OBCs+ State listed Other Backward Classes viz; ALC, RBA etc).The list of other Backward classes of J & K is for more extensive than thecentral list. The J&K reservation act 2004 declares certain areas asSocially and Educationally Backward, to whom it provides Resident of Backwardarea (RBA) certificate and similarly other backward categories of state are tooawarded with respective category certificate for reservation in state Quota.When the Jammu And Kashmir reorganization Act 2019 brought to reorganize thestate into two Union Territories, the reorganization act upheld the continuityof J&K reservation act 2004 along with several other acts which werepreviously working under State.
The bone of contention is that there areseveral people living in Socially and Educationally Backward areas (declared byJ & K reservation Act) which were recognized at UT level only and not atcentral level. For example a person X satisfying all the criteria of EWScategory and living in Karnah (an administrative Tehsil in District Kupwara)will not get EWS reservation at national level because he is living in sociallyand educationally backward area declared by j & K reservation act 2004 andpossessing RBA, but his RBA category is not acceptable to any centralrecruiting agency because the category Mr. X is showing is not recognizable atcentral level, and hence he is not able to claim even a single Reservation atcentral level. In this way lakhs of people are getting devoid from EWSreservation at central level despite of their deservedness.
What local authorities saying?
When the issue is brought to a localTehsildar of Karnah who had issued an order No.07-10/EWS/TK which read as:
“As per SRO 518, amendments Jammu andKashmir Reservation Rules 2005.
Economically Weaker Sections (EWS) meanperson who are not covered under the scheme of reservation for SCs, STs andSocially and Educationally Backward Classes as defined under clause(M)Clause(N) and Clause (O) of Sec 2 of Jammu and Kashmir Reservation act 2004.
As per Reservation Act 2004 whole TehsilKarnah has been declared as Socially and Educationally Backward hence does notcome under the scheme of EWS. The Certificates issued by this office undercategory till date are here by cancelled. No application for issuance of (EWS)will be entertained in the office.”
He said that as per SRO 518, amendment to J& k reservation act 2005 he cannot issue such a certificate on the basis ofdefinition provided by said SRO. One should argue him whether the definition ofEWS provided under 103rd amendment and its extension to J & K under TheJammu and Kashmir reservation (second amendment) act 2019 has no meaning tohim? or whether one is claiming EWS under SRO 518 or under J & Kreservation (second amendment) act 2019?, the administrator didn`t bothered togive any further explanation, except adding “there are legal hurdles to giveyou justice, You can challenge SRO 518 in court”.
On not getting any satisfactory explanationpeople approached District Administration., where a senior official statedthat, “EWS is only meant for general category and it will not be issued to anyother categories”. Nobody knows what does general category mean to official.Whether it is the general category as per centre or it is the general categoryas per state. But in kashmir if you further argue an official, either you willbe harassed or you will hear in anger “talk to Modi!”. God knows whether Modiis some clerk in adjacent office or it is an official sitting somewhere instate or they are talking about honourable Prime minister of country. After notgetting any substantial explanation we resort to sketch the matter on paper.
Whether people really deserve
reservation?
Let’s take the case of Karnah, ageographically isolated area having only way, Sadhna pass connecting mainvalley, remains closed or disrupted for almost six months. Suppose a person Xhaving AAY status in this area is competing with person Y having AAY status indelhi. Despite of their same status in law, there is a huge difference betweenthe AAY of Karnah and Delhi. A person living in Delhi has access to almost allkinds of modern facilities whereas a person living in Karnah has no access toeven newspaper, internet and not even a good quality Radio transmission. On thetop of that a Delhiite poor is easily enjoying EWS reservation and same isdenied to a poor of Karnah. Their Backwardness shows that backward communitiesof J & K (covered only under J&K reservation act) which are not coveredunder any central list of reservation should be included in ambit of EWS.
Way forward
On similar grounds the central reservationis denied to a vast community in Kashmir. The people will have to suffercontinuously till the intervention of a court or Politicians bother to thewoes. Denial of a reservation to deserving community on the basis of legalhurdles and ambiguity in law is against the spirit of Constitution, It’s violationof their fundamental right. Higher authorities should sincerely look into thematter. The Jammu and Kashmir reservation act 2004 should be amendedimmediately to give justice to deserving community. Any new initiative oramendment to law should be properly communicated to lower strata ofadministration.
Saahil Tanveer is a Masters of PoliticalScience