J&K High Court Bar Association, Srinagar Friday tookstrong exception to extension of two central constitutional amendments to thestate granting reservation in promotions and reservation foreconomically-weaker sections of the society.
In a statement here today, the bar said the constitutionalamendments have been extended to the state purportedly on the recommendationsof the State Administrative Council (SAC), when as a matter of fact the SAC has”ceased to exist” after the presidential proclamation of emergency in the stateon 19.12.2018.
“The SAC which ceases to exist could not have made anyrecommendation,” the bar said.
It also said that the central government has come out withthe “J&K Reservation (Amendment) Ordinance to amend J&K ReservationAct, 2004, and Constitution (Application to Jammu and Kashmir) Amendment Order,2019, to amend the Constitution (Application to Jammu and Kashmir) Order, 1954″at a time, when the Supreme Court of India “is already seized of a writpetition challenging constitutional validity of Article 35A.”
“In terms of presidential proclamation of emergency dated19.12.2018, the President has assumed all the functions of the state. TheGovernor is an “agent of the President of India and an agent cannot make anykind of recommendations for issuing any ordinance or order,” it said.
“In terms of another notification issued by the President on19.12.2018, the Governor has to exercise only those powers granted to himsubject to superintendence, direction and control of the President, making itfurther clear that the concurrence given by the Governor, in the instant case,is a concurrence from Caesar to Caesar’s wife,” it said.
Pertinently, the Bar held a daylong meeting at High CourtComplex, here where the lawyers “examined the ordinance as well asconstitutional application order, 2019 from the constitutional perspective.”
The bar said the Ordinance and the order issued “are inessence and substance a cloak to extend to the state of J&K theconstitutional amendments carried out in the Constitution of India by theConstitution (seventy-seventh Amendment) Act, 1995 as well as the 103rdAmendment creating provision for reservations for economically backward membersof the society.”
The bar said the constitution of India “does not by its ownforce apply to J&K and its provisions can be extended only in accord withthe mechanism constitutionally provided and prescribed under Article 370 of theIndian Constitution.”
The Bar said, “Given the constitutional mandate enshrined inArticle 370, as regards, the application of the provisions of the constitutionof India to the State of J&K, as well as the constitutional authorities,designated there under and the dispensation at the helm of affairs in the Stateof J&K at present, the Ordinance issued by the Central Govt, therefore, isclearly a fraud on the provisions of Article 370 of the Constitution of Indiaand therefore unconstitutional, liable to be rolled back.”
The Bar also condemned the banning of the Jamaat-e-Islami bythe government.
“The notification dated 28.02.2019 declaring Jamaat-e-Islamias an unlawful association, is legally and constitutionally invalid because itis aimed to deprive the Kashmiri Muslim students of the education they receivein the schools run by Falah-i-Aam Trust, which is their fundamental right.”
“The banning of this organisation is also aimed to curb thepeaceful religious activities by the said organisation which is clearly aninterference into the religious affairs of Muslims of Kashmir,” it said.