JKSC issues a statement on the recent judgement of J&K High Court

Jammu Kashmir Study Centre

12.10.2015

A statement made by Sri Jawahar Lal Kaul, chairman, Jammu Kashmir Study Centre, regarding the recent judgment of Jammu & Kashmir High Court on issue of reservation in promotion of SCs and STs

The judgment delivered on 9.10.2015 by Jammu & Kashmir High Court in the case of Ashok Kumar & Ors. has attracted attention of media for  wrong  reasons. We find it necessary to place the true facts about the exact position of Article 370 before the people and to expose the mis-propaganda unleashed by certain individuals and organizations with regard to Article 370.

 Admitted factual background of the Judgment: 

• The Supreme Court’s Judgment in Indra Sawhney vs. Union of India 1992 created prohibition in reservation for SC/STs in promotion. The 77^th amendment in Constitution of India introduced Sub-Section 4A to Article 16 of the Constitution whereby the effect of Indra Sawhney judgment was nullified and Governments of the states were empowered to make provision for reservation for SCs/STs in promotions. 

• In the state of Jammu & Kashmir, reservations were introduced pursuant to the 77^th The same were challenged on the limited ground of non-compliance of the procedure of Presidential Order prescribed under Article 370 of Constitution of India. In other words, the subject matter of the petition was “validity of reservation in promotion” and not “permanence of Article 370”. 

• Article 370 of the Constitution of India is the law of application and does not create absolute restriction on Parliament’s legislative powers on subjects in Union List and Concurrent List but merely requires a Presidential Order for issued in consultation/concurrence of State Government for enacting a law. 

• Article 368 of the Constitution of India gives power to Parliament to amend the Constitution and lays down procedure for making such amendment. 

• By the Presidential Order {The Constitution (Application to Jammu & Kashmir) Order, 1954), a proviso was added to Article 368 and due to this proviso, any amendment to the Constitution shall be applicable to the State of Jammu & Kashmir when the President issues an order under Clause (1) of Article 370. In other words, any amendment to the Constitution of India shall be applicable to the State of Jammu & Kashmir when there is a Presidential order with a procedure laid out in this article to effect such application. 

• Therefore the core issue before the High Court of Jammu & Kashmir was- whether the amendment in an Article involving fundamental right of equality (Article 16) for giving effect to reservation in promotions requires a Presidential Order or whether it would automatically be applicable to all states including Jammu & Kashmir? 

• Whether or not Article 370 is permanent feature of Constitution or a temporary measure was not at all in issue before the High Court.

Sum and substance of the Judgment:

The High Court held that since the Presidential Order was not issued for extending the application of 77^th amendment to the State of Jammu & Kashmir, the Indra Sawhney judgment remains binding for the State of Jammu & Kashmir and therefore the reservation in promotions for SCs/STs are not available for the State of Jammu & Kashmir.

Remedy/Solution to rectify the situation:

The controversy is the outcome of the deliberate effort and design of the consecutive Government which failed to issue a Presidential Order with regard to 77^th Amendment in Constitution. However this technical defect can be cured and rectified by the present NDA government by issuing a simple Presidential Order even at this stage. This would nullify the judgment delivered by the Jammu & Kashmir High Court.

Injustice for SCs/STs in Jammu & Kashmir

The judgment creates a situation where the SCs/STs in Jammu and Kashmir would be deprived of the benefits that are available to SCs/STs in rest of India. This injustice needs to be immediately redressed. In view of this judgment the rights of around 25 Lakhs scheduled Castes and Scheduled Tribes are being taken away and they are put into different position compared to the scheduled Castes and Scheduled Tribe of the whole country.

The controversy also exposes the hypocrisy of political parties as also their insensitivity towards SCs/STs in the state of Jammu and Kashmir by keeping mum.

We make a fervent appeal to the Prime Minister of India and all political leaders of this country to initiate a process to remedy the anomaly and take effective steps to cure the grave injustice caused to SC/ST brethren in the State of Jammu & Kashmir.

We are also of the view that in any case the High court could not have reflected on interpretation of an article of the constitution as that expressly lies in the domain of the Supreme Court under Article 145(3) of the Constitution and that too by a bench of five judges commonly known as the Constitution Bench.

The judgment also compromises sovereignty of the Parliament.

Incorrect interpretation of Article 370 by the High Court:

In the title to Part XXI of the Constitution of India, an amendment was carried out in 1962 whereby a word “Special” was added and the title thereafter reads as “Temporary, Transitional and Special Provisions”. The fact that the word “Special’ was added and the word “Temporary” was retained shows that as in 1962, the Parliament – while amending the Constitution- continued to hold that Article 370 is temporary.

Therefore the Jammu & Kashmir Study Centre respectfully disagrees with the interpretation made by the High Court of Jammu & Kashmir which seeks to travel beyond the true meaning that the Constituent Assembly of India as also the Parliament of India chose to give.   The inference of High Court that Article 370 reached finality on account of non-existence of “Constituent Assembly for Jammu & Kashmir” is erroneous and is contrary to the view time and again expressed during parliamentary debates.  It is pertinent to note that even while making amendment to Part XXI of Constitution of India, the portion relating to powers of President to issue notification for revoking Article 370 were not deleted. Therefore Article 370 is indeed a temporary measure and there is necessity to revoke the said Article in view of changed circumstances and to protect the interests of the Indian nation and society.

Therefore the Jammu & Kashmir Centre is of the firm opinion that the Government of India ought to constitute an expert committee of eminent lawyers and jurists to look into the issue of Article 370 and take a view about revoking the said Article by following due process of law.

Regards

Ashutosh Bhatnagar

Jammu & Kashmir Study Centre