J&K Reservation Bill

Mains Paper 2 : Federalism |

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 370

Mains level : Row over Art. 370


News

  • Recently Rajya Sabha has passed the Jammu and Kashmir Reservation Bill.
  • Passed by Lok Sabha last week, the Bill partially amends a Presidential Order of 1954 in order to amend the state’s Reservation Act.

About the Bill

  • The Bill amends the Jammu and Kashmir Reservation Act, 2004 and replaces an Ordinance promulgated on March 1, 2019.
  • The earlier Act provided for reservation in appointment and promotions in state government posts, and admission to professional institutions for certain reserved categories.
  • The Act provides for reservation in appointment and promotions in certain state government posts to persons belonging to socially and educationally backward classes.
  • It defines socially and educationally backward classes to include persons living in areas adjoining the Actual Line of Control.

Amendments to the Bill

  • With the constitutional amendments, the benefits of reservation available to the residents along the Line of Actual Control (LAC) have been extended to residents living along the International Border (IB).
  • This benefits residents in Jammu, Samba and Kathua.
  • Through the Presidential Order, the Cabinet applied the 77th Constitutional Amendment of 1995 to J&K, giving benefits of reservation in promotion to SCs and STs in government service.
  • The Cabinet also applied the 103rd Constitutional Amendment of 2019 to J&K, which gave 10% reservation to Economically Weaker Sections among people in the general category.

What is the 1954 executive order?

  • The 1954 order is an executive order issued by the President under Article 370 to extend provisions of an Act of Parliament to J&K State, which can be done only with the concurrence of the state government.
  • The Constitution of India applies to Jammu & Kashmir by virtue of Article 370, which provides a mechanism for the way it applies.
  • Article 370 defines state government as ‘the Maharaja’ and/or the ‘Sadar-i-Riyasat’ aided by a council of ministers.

Then what is the controversy?

  • At the centre of the controversy is the question whether the Governor, in the absence of an elected government, has the authority to give consent to extend a law of Parliament and change the constitutional arrangement between J&K and the Union.
  • While bringing the ordinance, the Union govt. said the amendments were recommended by the State Administrative Council (SAC) headed by J&K Governor.
  • While no one in J&K has opposed the decision to provide benefits to SCs, STs and EWS, there has been opposition to the route taken by the Centre and its nominee the J&K Governor.
  • It is accused that Union Govt. “breached” Article 370 while issuing the amendment to the 1954 Presidential Order.

Issue with Governor’s authority

  • The issue of the Governor’s powers was defined by the Supreme Court in Mohammad Maqbool Damnoo versus State of J&K (1972).
  • While dealing with the replacement of an elected Sadr-i-Riyasat with the Centre-appointed Governor, the court observed that a Governor is “head of government aided by a council of ministers”.
  • It is not as if the state government, by such a change (replacing elected Sadr-i-Riyasat with Centre-appointed Governor) is made irresponsible to the state legislature.

Arguments by regional parties

  • One of the main regional parties has challenged the amendment to the Presidential Order of 1954.
  • The regional parties contend that “concurrence” means the concurrence of an elected government, and not that of a nominated government.
  • Elected govt. is a must for any amendment to the Presidential Order of 1954, and that this is thus in contravention of Article 370.
  • They contend that the government means an elected government and that the President cannot seek concurrence of the Governor because “the Governor is a representative of the President”.
J&K – The issues around the state
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