Extension of Constitutional amendments 77th& 103rd toJ&K state has generated clamour on several counts. The amendments relate tocaste based reservations, as also for weaker sections of society. There areobjections based on constitutional grounds, as also on the political purposebehind the extension of the related amendments. The constitutional amendmentshave been extended, while the state is under President's rule, and as suchgubernatorial administration holds sway, until a duly elected government takesover the reins of power. President' rule and thence the gubernatorialadministration is by its very nature a stop gap arrangement. It may not figureas a dispensation equipped to evolve a wide raging consensus for decisions withfar reaching implications. Constitutional propriety may lie in running day today administration without getting into decision making with wideramifications.
Much more than the import of these amendments and theattendant implications for the state of Jammu and Kashmir, it is the procedureadopted in application that is in focus. The import of these amendments thoughremains a matter of intense political speculation, as could be expected ofreservations for any social segment.The legal fraternity in Kashmir and crosssection of the civil society contends that Article 370, clause (1) (d) may nothave been rightly interpreted in extending these amendments. The regionalparties in the so called mainstream concur. The article with its relevantclause pertains to obtaining the consent of government of Jammu and Kashmirbefore a Presidential Order applies a constitutional amendment to the state. Itis widely related that government of Jammu and Kashmir may be taken to mean anelected government, rather than a stop gap gubernatorial administration.Governor raj merely fulfills a constitutional vacuum, as and when an electedgovernment is not in power, whatever the reason.
Constitutional procedures are guided not only by the letter,but the manner in which these procedures have played in the past. The pastprocedures form constitutional history and provide a norm to be followed.Presidential Order of May 14, 1954 provides one such norm, in fact the primaryor the initiating norm. In the said order, a series of constitutionalapplications with exceptions and modifications were made applicable to Jammuand Kashmir State. It set a precedent for the procedure to be adopted, whichshould form an adequate guide. The 1954 order was based on recommendations ofthe draft committee of constituent assembly. The assembly was framed on theelection conducted in 1951. The draft committee included Girdhari Lal Dogra,Syed Mir Qasim, Durga Prashad Dhar, Ghulam Rasool Renzu, and Harbans SinghAzad. The committee assigned with recommending the constitutional applicationswith exceptions and modifications placed its deliberations for consideration ofconstituent assembly on February 11th 1954. The assembly approved it onFebruary 15th 1954, and it was subsequently placed for Presidential Order bythe Government of Jammu and Kashmir State. The order was published by Ministryof Law Government of India under S.R.O 1610 on May 14, 1954.
The procedure adopted in application of constitutionalprovisions to Jammu and Kashmir State denotes what is paramount, the wide consultationin deliberations in keeping with the democratic spirit. More, in fact manyconstitutional applications with exceptions and modifications were made insubsequent years. In all theseinstances, constitutional applications were based on consent and concurrence ofelected Government of Jammu and Kashmir except in one instance. In 1986 inmarked departure from the set procedure, the accepted norm, the consent andconcurrence was provided by Governor Jagmohan. It related to Article 249, whichpertains to power of parliament to legislate with respect to matters in theState List. Without going into specificsof exception and modifications related to the said article, it may be taken asthe first abrasion of the norm adopted, wherein Governor—a nominee of Presidentof India provided the consent. Thirty three years later, in 2019 Governor Malikfollowed suit, yet again a nominee of President departing from set procedure,in affect a violation of democratic norms.
Having assessed the constitutional norms, the set procedure,the historical background of constitutional applications with exceptions andmodifications, we may focus on quarters severely critical of entire process ofsuch procedures. Questions have been raised on the fairness of series of stategovernments providing consent and concurrence. The electoral process thatbrought these governments to power has faced criticism not only fromdissidents, but even from present day power dispensation in GOI. Arun Jaitleyin more than one parliamentary debate has questioned the fairness of variouspolls conducted, ever since the initial poll conducted for electing theconstituent assembly in 1951. The latest was in Rajya Sabha in recent months.MoS in PMO—Jitendra Singh accused the regional mainstreamers of coming to powerthrough unfair electoral practices. What value could be placed toconstitutional applications consented by Jammu and Kashmir State Governmentsconstituted by questionable means? Leaving aside the questions raised, we mayconclude that even the veneer of democratic norm in providing consent andconcurrence was violated with presidential nominees in gubernatorial chairproviding consent and concurrence.
While as 77thamendment relates to reservation in promotionfor the scheduled castes and scheduled tribes) 103rd amendment stands for 10percent reservation for economically weaker sections (EWS) of society. Therushing in of these amendments is meant mostly to pay electoral dividends toruling dispensation. How will the related amendments play out in wider theaterof J&K's populace could be matter of time, of speculation?
Yaar Zinda, SohbatBaqi [Reunion is subordinate to survival]