Plea challenges extension of 77th, 103rd amendments to J&K

The News

  • The extension of 77th and 103rd constitutional amendments to the State of Jammu & Kashmir through a presidential order has been challenged in the J&K high Court.

 

About 77th and 103rd constitutional amendments

77th Constitutional amendment act, 1995

  • It was enacted in order to continue the existing policy of reservation in promotion for the Scheduled Castes and the Scheduled Tribes to protect their interest.
  • To carry out this, article 16 of the Constitution was amended by inserting a new clause (4A) to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes.

103rd Constitutional amendment act, 2019

  • The Constitution (One Hundred and Third Amendment) Act, 2019 made amendments to Articles 15 and 16 of the constitution to provide reservation of 10% for “economically weaker sections of the people who are not covered by any of the existing schemes of reservation”.
  • The amendment added a clause 15 (6) which permit the government to provide special provisions for the advancement of “economically weaker sections”.
  • The amendment also added a 16 (6), which permit the government to reserve up to 10% of all posts for the “economically weaker sections” of citizens.

 

Background

  • On February 28, 2019, the President of India, by exercising powers vested in him by Article 370 Clause 1(d) of the Constitution of India, passed two ordinances related to the Jammu & Kashmir state.
  • The First one was the J&K Reservation (Amendment) Ordinance 2019.
    • This ordinance brought persons residing in the areas adjoining international border within the ambit of reservation at par with persons living in areas adjoining the Line of Control.
    • It also provided for amendments in the J&K Reservation Act, 2004, to offer benefits to people residing in the areas adjoining international border.
  • The second ordinance was the Constitution (Application to Jammu & Kashmir) 0rder, 2019.
    • It amended the Constitution (Application to Jammu & Kashmir) Amendment Order, 1954.
    • It provided for the extension of the 77thConstitutional Amendment Act, 1995 and 103rd Constitutional amendment Act, 2019 to the state of Jammu & Kashmir.
    • It will provide 10 per cent reservation for economically weaker sections, which includes Scheduled Castes, Schedule Tribes, in educational institutions and government job in addition to the existing reservation in Jammu and Kashmir.
  • Now, this extension of 77th and 103rdamendments of the Indian Constitution to the State of Jammu & Kashmir through a presidential order has been challenged in the High court.

 

Summary of the news

  • A petition was filed in the Jammu and Kashmir High Court challenging the extension of the 77th and 103rdamendments of the Indian Constitution to the Jammu & Kashmir state through a presidential order.
  • The petitioners sought striking down of the Constitution (Application to J&K Amendment) Order, 2019 and the J&K Reservation (Amendment) Ordinance, 2019, which extended 77th and 103rdconstitutional amendments to Jammu & Kashmir.
  • The J&K High Court issued a notice to Government of India (GoI) with regard to this petition.

 

Grounds for challenging both the ordinances approved on February 28, 2019

  • Unconstitutional: The ordinances are unconstitutional because they notified without any “consultation” or a “concurrence” of the State government which a must requirement as per article 370 of the Indian constitution.
  • Absence of Council of Ministers: The ordinance cannot be applied to Jammu and Kashmir in the absence of a Council of Ministers and as the state is under the President’s Rule since December 2018, the Governor, without the advice of the Council of Ministers, was incompetent to give any concurrence to the proposal for issuing any ordinance.
  • No powers to amend state law: The President of India has no power to amend J&K Reservation Act, 2004, which is a State Act, by issuing the Ordinance and also under president rule it is only the Parliament which can make or amend any state law.
  • No emergency situation: Ordinances are issued in emergency situations but there was no emergent situation to issue J&K Reservation (Amendment) Ordinance, 2019.
  • Constitutional damage: The ordinances issued appear to pave way for a greater constitutional damage to the State.
  • Misuse of mechanism: The mechanism provided under article 370 to apply constitution of India to the state of J& K is being misused by the government and can also be misused in the future to do away with Article 35-A and amend any other state law.
  • Constitutional position of J& K: The two ordinances are being perceived as a fraud and deceit to the people of J&K which aims to hinder the unique constitutional position of Jammu and Kashmir.

 

Hence, the petitioners have sought striking down these two ordinances.

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