Constitutionality of the Jammu & Kashmir Reservation Ordinance: A rebuttal

Sarthak Raizada

The disciplinary rules of any constitutional discourse would require every student of law to comment on or criticize government action on the basis of reason and detachment from personally held political views. Use of words such as “legally inept mind” and “grotesque” by a person to attack government action indicates a deep-rooted animus towards the government per se rather than its policies.

The recently published article, ‘The Jammu & Kashmir Reservation Ordinance: Lock, stock and barrel unconstitutional’ in Bar and Bench reflects just this approach by asserting that the Constitution (Application to Jammu & Kashmir) Amendment Order, 2019 amending the Constitution (Application to Jammu & Kashmir) Order, 1954 and the consequent amendment of the Jammu and Kashmir Reservation Act is ex-facie unconstitutional. Being a responsible citizen and reader of constitutional law, it did not seem appropriate to me to remain a fence sitter by not responding to the issues pointed out in the article.

As per the author, the Constitution (Application to Jammu & Kashmir) Amendment Order, 2019 is unconstitutional as the Governor applied it to the State without the aid and advice of the Council of Ministers—which at the relevant time had already resigned from office. He concludes that the Governor was legally precluded from giving his concurrence to the consultation under Article 370 (1)(d) to the Constitution (Application to Jammu & Kashmir) Amendment Order, 2019, as there was no Council of Ministers in the State.

The above argument suffers from several infirmities. Under Article 356(1) of the Constitution of India as applicable to Jammu & Kashmir, the President by a proclamation can assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State. Put simply, Article 356(1) (a) empowers the President to step into the shoes of the Governor of Jammu & Kashmir and exercise his all his powers once President’s Rule has been invoked under Article 356(1).

Now, one of the powers conferred upon the Governor of Jammu & Kashmir under Article 370 is to give his concurrence or consultation for extending the provisions of the Indian Constitution to the State of Jammu & Kashmir. As such, once the President has issued a proclamation under Article 356(1) of the Constitution, he is automatically entitled to assume Governor’s power under Article 370(1)(d) and take any further action based on the aid and advice of the Union Council of Ministers.

This assumption of the Governor’s power – who acts on the aid and advise of the State Council of Ministers – by the President acting on the aid and advice of the Council of Minister, once a proclamation has been issued under Article 356(1) has been affirmed by the Supreme Court in State Of Rajasthan & Ors. v. Union Of India AIR 1977 SC 1361 where the Court while relying upon the powers under Article 356(1)(a) ruled as follows:

“Article 174(2) (b) of the Constitution expressly vests the power of dissolving the legislative assembly in the Governor even if that had to be on the advice of the Council of Ministers in the State,  but the power to give such advice would automatically, be taken over by the Union Government for the purposes of dissolution of the State Assembly when the President assumes governmental powers by a proclamation under Article 356(1) of the Constitution. A dissolution by the President after the proclamation would be as good as a dissolution by the Governor of a State whose powers; are taken over.”

The aforesaid observation, although given in a different context, applies with equal force to the powers of the Governor under Article 370(1)(d) as Article 356(1) of the Constitution does not except those powers from assumption by the President. This is also supported by the Presidential Promulgation dated 19.12.2018 imposing President’s Rule in Jammu & Kashmir, which provides that any reference in the Constitution of India or the State Constitution, to the Governor, shall be construed as reference to the President, in relation to Jammu & Kashmir.

These modifications through the Presidential Promulgation are permissible as per Article 356(1)(c) for giving effect to the objects of the Promulgation. As such, the author’s argument that application of the Constitution (Application to Jammu & Kashmir) Amendment Order, 2019 is unconstitutional goes against the constitutional scheme and defeats the underlying purpose of Article 356. If the author’s arguments were anything to go by, it would have a damning effect on the administration of the State, in as much it would bring the wheels of the government to a grinding halt. It would defeat the very purpose of a proclamation under Article 356 i.e. saving the state from absolute breakdown of constitutional machinery.

The “failure to consult the State Council of Ministers”, “elected government” and preservation of “democratic realm” is an oversimplification of the issue and undermines constitutionalism, creating space for opportunistic politicians having no or little faith in a constitutional principles. Political parties like the PDP and National Conference, for a long time, have created clamour and clatter by using these expressions, as they ostensibly find favour with the public. Regretful, as it is, the only objective behind this political expression is to drown the actual constitutional issues in rhetorical notions of autonomy and self-determination.

On the promulgation of the Jammu and Kashmir Reservation (Amendment) Ordinance, 2019, the author dubs it as egregious on two grounds: First, Parliament alone and not the President is empowered under Article 356(1) to amend or make/amend laws which the State Government is otherwise competent to make/amend. Second, he argues that the Parliament has not delegated its newly acquired power of making/amending laws with respect to the State Legislature to the President through the machinery provided under Article 357 of the Constitution, which empowers the Parliament to entrust the President with the power of the State Legislature to make laws.

The foregoing argument is, again, made in ignorance of the wide expanse of the powers conferred on the President under Article 356(1). It should be recalled that promulgation of the President’s Rule in the State subsumes the powers of the Governor in the hands of the President. Although the combined effect of Article 356 and 357 is to deny legislative powers of the State to the President unless expressly authorized by the Parliament in that behalf, the scope and operation of the two provisions is limited.

Article 356 restricts only the assumption by the President of legislative functions of the State Legislature under Article 245, 246 and 254 of the Constitution. By its express language, it does not seek to limit the assumption of Ordinance making powers conferred on the Governor under Section 91 of the Jammu & Kashmir Constitution as opposed to legislative powers of the State by any stretch of imagination. Had the founding fathers intended to curtail the powers of the President under Article 356(1), it would have been expressly mentioned therein as such eventualities were easily forseeable by the Constitution framers.

Interestingly, the author’s view that the power to make laws during President’s Rule being entirely different from the power of making laws through an Ordinance, also demonstrates that exclusion of legislative power of the State does not imply exclusion of Ordinance making power of the Governor from the purview of Article 356(1).

Another reason the author’s argument does not stand constitutional scrutiny is the language used in Section 91(1) of the Jammu & Kashmir Constitution which deals with the Ordinance making power of the Governor. It reads as follows:

“If at any time, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.”

Use of the expression, “If at any time” under Section 91(1) is wide enough in its scope to enable the President to promulgate an Ordinance during President’s Rule in the State. Again, the absence of any specific prohibition under Section 91(1) for using this power when a promulgation under Article 356 (1) is in force shows that the Ordinance making power of the President was not sought to be limited.

Lastly, paragraph (c)(iii) of the Presidential Promulgation dated 19.12.2018 is an incidental provision supported by Article 356(1) (c) which explicitly provides that reference to the Governor under Section 91 shall be construed as reference to the President. As such, the Presidential Promulgation also reiterates, as a matter of abundant caution, the constitutional position reflected in Article 356(1) by empowering the President to promulgate an ordinance under Section 91 of the Jammu & Kashmir Constitution.

Overall, it is apparent that concerns raised by the author are blown out of proportion just as much are the use of words in the article to label the Amendment Order and Ordinance as lock, stock and barrel unconstitutional.

It should be remembered that the objective behind the Amendment Order and Ordinance was to empower Scheduled Castes, Scheduled Tribes, economically weaker sections and people living near the conflict-ridden Indian international borders. Attacking the legitimacy of such affirmative measures should be done on sound logic and reasoning.

The author is an advocate at the Supreme Court of India.