Mains Paper 2 : Federalism |
From UPSC perspective, the following things are important :
Prelims level : Art. 370
Mains level : Row over Art. 370
- 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”.