The Jammu & Kashmir Reservation Ordinance: Lock, stock and barrel unconstitutional

Bar & Bench March 24 2019
Anti-Defection

Shariq J Reyaz

The unfortunate legal and constitutional history of Jammu & Kashmir has been fraught with various acts - both direct and indirect, innocuous and dangerous, benign and malignant - that have consistently compromised the unique Constitutional position of the State.

The recent constitutional amendments and the consequent amending of the Jammu & Kashmir Reservation Act by the President by virtue of an Ordinance is an ex-facie unconstitutional Act.

There are two major legal arguments that have to be appreciated when it comes to the present constitutional amendments and the consequent amending of the State Act. The first deals with the implications of Article 370 of the Constitution of India, and the second deals with the power of the President to amend a State Act (Jammu & Kashmir Reservation Act in the present case) during the period of the proclamation under Article 356 (colloquially known as ‘President's Rule’) of the Constitution of India.

The first argument is rather simple, and I have seen constitutional experts comment on it when they say that the Constitution of India does not apply to the State of Jammu & Kashmir of its own force, and has to be applied to the state by resorting to the rigors of Article 370 of the Constitution. (article 370)

Article 370 provides a mechanism for application of the Indian Constitution to the State of Jammu & Kashmir. It can be done by a presidential order, which for its implementation requires the ‘consultation’ or ‘concurrence’ of the state government. The state government, for the purpose of Article 370, meant the Maharaja (now the Governor by amendment). - article 370

The upshot of the above is that every presidential order that applies any part of the Constitution to the State of Jammu & Kashmir, whether in a modified or amended form, requires the mandatory consultation or concurrence of the state government being the Governor acting upon the aid and advice of the Council of Ministers.

So, when the 77th Constitutional Amendment and the 103rd Constitutional amendment were hitherto not applicable are to be now applied to the State of Jammu & Kashmir, the ‘concurrence’ of the State Government is a prerequisite. Since the Assembly is dissolved and there is no Council of Ministers, the Governor, acting without the advice of the Council of Ministers, is legally incompetent to give such concurrence.

The usage of the words ‘acting on the aid and advice of the Council of Ministers’ specifically assumes all significance because when the Article was drafted, it was done in a particular way to incorporate the mandatory views of the representatives of the State of Jammu & Kashmir, being the Council of Ministers.

The Constituent Assembly debates make it further clear that the Maharaja, who was otherwise the sovereign head of the state, had inducted a Council of Ministers by a royal warrant dated 05.03.1948 and vested all the responsibility of the government with such Council. The following excerpt from the Constituent Assembly debates takes the matter beyond the realm of doubt.

M Gopalswami Ayyanagar, who proposed and debated Article 370 (then Article 306A), had, in the context of Council of Ministers and the Maharaja said that the Maharaja had “instituted a kind of responsible Government with a Prime Minister and colleagues who would own collective responsibility for their acts and regard themselves as jointly responsible for all the acts of the Government’.

The Maharaja then and the Governor now are merely nominated heads with no independent decision-making power when it comes to Article 370. Thus, today, the Governor (being the nominated head of the State), acting without a Council of Ministers, is legally incompetent to give any concurrence to the application of any part of the Constitution of India to the State of Jammu & Kashmir. The unilateral action of the Governor is insufficient compliance of Article 370 and is thus manifestly vitiated in law. (article 370)

There is, however, a specious counter-argument that could have led the Governor to give his concurrence. A legally inept mind could have suggested to the Governor that by virtue of the President’s, Rule the function of the state government now vested with the President and such function includes the duty to aid and advise the Governor. Hence, if the function of the state government was delegated by the President to the Governor, the Governor by such delegation had subsumed the function of the government and could thus aid and advise himself for the material satisfaction of Article 370. - Article 370

Such a proposition, as you must have gathered from the plain wording of it, is too grotesque to be accepted and would be alien to the working of a Constitution. It would certainly not hold up to judicial scrutiny, because apart from being legally incongruous, it patently militates against the rationale behind the incorporation of the Article in the first place.

The constitutional import of Article 370 is all too well known to make way for any such perverse argument. The importance of the aid and advice of the Council of Ministers being the elected representatives of the people of Jammu & Kashmir is what keeps the power grounded in the democratic realm, otherwise, the safeguard of Article 370 would have been a fool’s bargain. (Article 370)

If such aid and advice is directly or indirectly dispensed with, the decision would fall foul of the spirit as well as the letter of Article 370 and would hence be unconstitutional. (Article 370)

The second more egregious argument pertains to the fact that the President, after having issued a proclamation under Article 356 (‘President’s Rule’), has amended a State Act (Jammu & Kashmir Reservation Act) by issuing an Ordinance under Article 91 of the State Constitution. There is absolutely no discernible method to this madness.

It must be understood that a proclamation under Article 356 falls under Part XVIII of the Constitution, which deals with ‘Emergency Provisions’. Such provisions are a departure from the general working of the Constitution where the state government and Union Government operate in different fields. Under the Emergency provisions chapter, there is a lot of overlaying in which powers of the state government and the state legislature can, in emergent situations, be drastically vested with the President and the Parliament.

However, the exact and the only mechanism and manner in which such things can be done is also specifically provided in the said chapter. Whenever President’s Rule u/a 356 is declared in any state of India, the functions of the state government vests with the President, and the power of the state legislature i.e. the power to make or amend laws for the state, vests with the Parliament of India.

That is to say that under President’s Rule, only Parliament can make/amend laws which otherwise the state legislature is competent to make/amend. So, in essence, right now, while Jammu & Kashmir is under President’s Rule, only Parliament could amend the Jammu & Kashmir Reservation Act and no other authority could do that. The President is, by the express language of Article 356, precluded from exercising any power of the state legislature.

Article 357, however, provides a mechanism in which Parliament can delegate its newly acquired power of making/amending laws with respect to the state legislature to the President. That would require Parliament to pass an Act delegating its powers with respect to the state legislature to the President. When such an Act is passed, then and only then would the President have the power to amend the Jammu & Kashmir Reservation Act, a State enactment.

The examples when in the past Parliament, while a state was under President’s Rule, had enacted a law to empower the President to make/amend laws for a state legislature are many. The Uttar Pradesh State Legislature (Delegation of Powers) Act 1973, West Bengal State Legislature (Delegation of Powers) Act, 1968, Madhya Pradesh State Legislature (Delegation of Powers Act) 1993, Tamil Nadu State Legislature (Delegation of Powers) Act 1976, are some of them.

So, for all intents and purposes, like every other state under President’s Rule, Jammu & Kashmir also should have had a Jammu & Kashmir State Legislature (Delegation of Powers) Act, 2019 passed by the Parliament delegating its power to the President and empowering the President to amend any state law including the Jammu & Kashmir Reservation Act.

While Parliament in its Winter Session approved the President’s Rule in January 2019, no such Act was passed delegating the powers of the state legislature to the President. Parliament, by doing no such thing while it was in session, kept the power with itself and in absence of any such delegation, vested no power in the President to even touch any state enactment leave alone amend it. There was no other way available in which such delegation of power could be achieved. If the President resorted to any other way to amend the Jammu & Kashmir Reservation Act, it would be manifestly ‘unconstitutional’.

The President astoundingly and against all known legal canons issued an Ordinance under Article 91 of the State Constitution to amend the Jammu & Kashmir Reservation Act. An Ordinance can never be issued for a state by the President during a period of proclamation under Article 356. It is an impossibility and has never been done for any other state.

The period of proclamation, as pointed out before, is an extraordinary situation governed solely by Part XVIII of the Constitution and the only mechanism that can be resorted to amend a state legislature is the one provided under Article 356 and 357.

The general provision of an Ordinance under Article 123 of the Constitution of India or Article 91 of the State Constitution is not countenanced as a mechanism to amend the state Act during a proclamation under Article 356. There cannot be any automatic assumption of power in the President on the pretext that the Parliament is not session. The express language of Article 356 precluding the President from assuming the power of state legislature and the express command of Article 357 mandating how such power can be delegated, would prohibit the President from usurping the power not belonging to him.

The power to make laws during President’s Rule is entirely different from the power of making laws through an Ordinance. They operate at different times for achieving different objects. One cannot be substituted for the other.  Its like chalk and cheese for the legally trained mind. The laws made during President’s Rule are qualitatively and constitutionally altogether different and distinct from laws made through an Ordinance.

What has happened in Jammu & Kashmir has absolutely no constitutional sanction. The entire act of giving concurrence by the Governor without the aid of the Council of Ministers and the act of the President amending the Jammu & Kashmir Reservation Act through an Ordinance are lock, stock, and barrel, unconstitutional acts.

The author is a practicing advocate.

Disclaimer: Views expressed in this article are personal and are not attributable to Bar & Bench in any manner.

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