An unconstitutional reservation

It is not wrong to say that RBA is actually a corruption in the name of reservation
An unconstitutional reservation
"The special status granted to J&K also empowered J&K legislative assembly to define “permanent residents” of the state and provide special rights and privileges to them under Article 35 A of the Indian constitution." [Representational Image] Thebluediamondgallery [Creative Commons]

BY DR. SAIF UL YAMIN and DR. AZHAR MUSHTAQ

The diversity of our country is the ground for the plethora of privileges available to the citizens guaranteed by the supreme constitution of India. India after independence opted for supremacy of constitution bypassing parliamentary sovereignty that was prevalent in the British legacy.

The feature of supremacy of the constitution was adopted to ensure the scope for the “judicial review” that later in the famous “Keshavnanda Bharti VS state of Kerala was declared a basic feature of the constitution.

Besides that India opted for a single constitution for the entire country with the exception of erstwhile state of J&K and was provided with a separate constitution proscribed under the “Instrument of accession” and J&K was conferred with the special status by the constitution of India.

The special status granted to J&K also empowered J&K legislative assembly to define “permanent residents” of the state and provide special rights and privileges to them under Article 35 A of the Indian constitution.

This ensured that the residents of J&K could avail benefits of exclusive employment in the erstwhile state and debarring other citizens of the union of India from the same.

However, the privilege of having a separate constitution among all was highly misused by different regimes that ruled the erstwhile state of J&K. The recent repealing of “Roshini Act “that was brought by the erstwhile legislative assembly is a testimony of the misuse of power by the previous regimes.

These acts although unconstitutional wereimmune to the vigilance of the parliament and were responsible for fuelling corruption. These appeasement policies even endangered the meritocracy in the erstwhile state.

The best example of assassination of merit is the reservation to RBA given exclusively to the residents of Jammu and Kashmir. Indian constitution provides the reservation for OBCs, STs, SCs and a novel concept of EWS included recently by amendment to the constitution.

There is no concept of reservation for resident of backward areas (RBA) in the Indian constitution and admitting this as reservation is an open and wilful disobedience to the supreme law of India. It will be no wrong to say that RBA is actually a corruption in the name of reservation.

The famous Mandal Commission appointed in 1979 by the Janta govt under the then PM Morarji Desai submitted the report in 1980 recommended for a reservation of 27% for OBCs and reservation to backward areas should have been a subset of OBCs.

But regrettably the trend of separate 20% reservation to the RBA was prevalent in J&K till the abrogation of article 370. With the introduction of reservation to the EWS the reservation to RBA has been reduced to 10% but still an ultravire (unconstitutional).

This trend is an open violation of article 14, article 15 and article 16 of Indian Constitution. Moreover, it is to be understood that RBA is not a permanent attribute but is being treated at par with other permanent attribute categories viz SC, ST etc., availing the benefits on similar lines at different phases of their career (academics, post-graduation, jobs, promotion, retirement) which is an assassination of the merit and also an injustice with the permanent attribute reservations.

The dream of “NAYA KASHMIR” could be fully realised only when the supreme law of country will fully prevail in the UT of J&K. The remaining ultravires need a hasty legislation so that the provision of single constitution dictated by the constitutional frames would survive.

We request the Honourable LG to show solidarity with the meritocracy and abolish such unconstitutional reservations from the UT so that meritocracy sustains.

Dr. Saif ul Yamin and Dr. Azhar Mushtaq are practising surgeons

Disclaimer: The views and opinions expressed in this article are the personal opinions of the author.

The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.

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