J&K PRESIDENTIAL ORDERS: ANALYSIS

March 20, 2019

Background:

Under Article 370 of the Indian Constitution, only two articles apply to J&K: Article 1, which defines India, and Article 370 itself.
Article 370 provides that other provisions of the Indian Constitution can apply to J&K “subject to such exceptions and modifications as the President may by order specify”, and with the concurrence of the state government.

The 1954 Presidential Order:

The Constitution (Application to Jammu and Kashmir) Order, 1954 applied to J&K provisions of Part-III of the Indian Constitution that relates to fundamental rights.
It also introduced Article 35A — which protected laws passed by the state legislature of J&K in respect of permanent residents from any challenge on the ground that they violated any of the fundamental rights.
This order was ratified by the Constituent Assembly that also framed the J&K Constitution, before dispersing in 1956.

Amendments to 1954 order:

This 1954 ‘mother order’ had the requisite concurrence of both the state government and the J&K Constituent Assembly.
Subsequently, 42 Presidential orders have been issued — all amendments to the 1954 mother order.
Through these Presidential orders, successive central governments have extended 94 out of the 97 entries in the Union List, and 26 out of the 47 in the Concurrent List to J&K, and made 260 out of the 395 Articles of the Indian Constitution applicable to J&K.
This list does not include The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, the GST Acts, and the two constitutional provisions that were extended on March 1.

Views of the Supreme Court:

Prem Nath Kaul vs The State of Jammu & Kashmir (1959): The Constitution-makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself.
Sampat Prakash vs State of Jammu & Kashmir, 1969: Presidential orders could still be made through Article 370.
Maqbool Damnoo vs State of Jammu And Kashmir, 1972: Governor is head of government aided by a council of ministers and is responsible to the State Legislature.

Governor and the 1954 Order:

Earlier, the Centre has amended the 1954 Order with the consent of the Governor’s administration.
In 1986, an amendment to the 1954 Order issued with the concurrence of Governor Jagmohan administration extended to J&K Article 249 of the Indian Constitution. The order was challenged in the J&K High Court, however the matter was never listed for a hearing.
Amendments were made to the 1954 Order during Governor’s Rule in 1993 and 1994 as well. These orders were issued to extend the duration of President’s Rule in J&K.

The Constitution (Application to Jammu & Kashmir) Amendment Order, 2019:

On March 1, President Ram Nath Kovind issued an executive order amending The Constitution (Application to Jammu and Kashmir) Order, 1954 to extend the provisions of the 77th and 103rd Amendments to the state.
According to union government, the amendment “will give benefit of promotion in service to the Scheduled Castes, Scheduled Tribes, and also extend the 10 per cent reservation for economically weaker sections in educational institutions and public employment”.

Opposition to recent move:

This move by the Union Government has been challenged in the Jammu & Kashmir High Court.
Major J&K parties said the order violated Article 370 — the provision that regulates J&K’s relationship with the Union.
Two lawyers have challenged the power of the Governor to make the recommendation without the concurrence of the state government, and pleaded that the recent executive order along with the Jammu and Kashmir Reservation (Amendment) Ordinance, 2019, be struck down.

View of experts:

The latest order has the consent of the Governor without the requisite aid and advice of the Council of Ministers. In a situation of Central rule, the Governor acts only as a nominee of the Union government and does not meet the definition of state government as laid down by Article 370 and the Supreme Court.
Major J&K parties have always opposed the amendments to the 1954 Order without ratification by the Constituent Assembly of the state. The Centre could do it because the Supreme Court allowed it.

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