A fresh petition was filed before the High Court on Monday seeking quashing and striking down of J&K Reservation (Amendment) Ordinance, 2019 and J&K Constitution Amendment Order, 2019 on the ground that the Constitutional (Application to J&K) Order, 2019, is ex-facie unconstitutional, fraud and delivered in deceit.
The High Court issued notice to Government of India (GoI) through Union Ministry of Home Affairs, Ministry of Law and Justice, Union Cabinet through Cabinet Secretary and State of J&K through Chief Secretary.
The court of Justice Rajesh Bindal directed respondents to file objections by third week of April.
The petition filed by Muhammad Ashraf Bhat and Adil Asimi, who are lawyers by profession, challenged the amendment Order and Ordinance approved by Union Cabinet on the ground that the Constitutional (Application to J&K) Order, 2019, is ex-facie unconstitutional because the Constitution of India does not apply to J&K on its own force.
The petition states that the unilateral action of the Governor in giving his “concurrence” to the Constitution Order, 2019, is clearly without jurisdiction and unconstitutional rendering the same liable to be struck down.
It states that in blatant violation of Article 356 of the Constitution of India the Union Cabinet on February 28, 2019 approved a proposal of J&K government regarding amendment to the Constitution (Application to J&K) Order, 1954, by way of Constitution (Application to J&K) Order, 2019, where under, the Provisions of Constitution (Seventy Seventh Amendment) Act, 1995 and Constitution (One Hundred and Third Amendment) Act, 2019, were applied to the State of J&K.
It further stated that without any power, authority and competence, Union Cabinet approved the promulgation of an Ordinance known as J&K Reservation (Amendment) Ordinance 2019, amending J&K Reservation Act, 2004 to bring persons residing in the areas adjoining International Border, within the ambit of Reservation at par with persons living in areas adjoining Line of Actual Control (LOAC).
The petition reads that on the basis of the approval of Union Cabinet, the Ministry of Law and Justice on 01.03.2019 issued Constitution (Application to J&K) Amendment Order, 2019 and J&K Reservation (Amendment) Ordinance, 2019.
“It applies to the State by virtue of Article 370 of Constitution of India, which provides a mechanism for application of Constitution of India to the State of J&K, requiring a “consultation” or a “concurrence” of the State government.
It says that 77th and 103rd Constitutional Amendment, which now form part of Indian Constitution, were not admittedly hitherto applicable to J&K and could not be therefore applied to J&K without the “consultation” or “concurrence” of the State government.
The petition further reads that after proclamation of June 20, 2018 the assembly was firstly put in suspended animation and later dissolved.
As on date there is no council of ministers, therefore, the Governor, notwithstanding the fact that he is no entity under Article 370 of the Constitution of India, without the advice of the Council of Ministers, was incompetent to give any “concurrence” to the proposal for issuing Constitution (Application to J&K) Order, 2019.
“The Governor of J&K, who does not otherwise also figure anywhere in the explanation appended to Section 1(b) of Article 370, in absence of Council of Ministers was not therefore legally competent to give any concurrence to the application of any part of Constitution of India to J&K,” it says.
It says that there was no emergent situation to issue J&K Reservation (Amendment) Ordinance, 2019 and there was hardly any need to apply 77th and 103rd Constitution Amendment to the State of J&K.
“The timing of these amendments especially when the State was in a war like situation makes the entire exercise suspect. It appears that the Constitution Order, 2019 and J&K Reservation (Amendment) Ordinance, 2019, have been issued to pave way for a greater constitutional damage to the State,” the petition states.
It also pointed out that there are already a number of petitions pending before Supreme Court of India seeking striking down of Article 35-A of the Constitution of India which has been inserted in the said constitution by virtue of Constitutional (Application to J&K) Order, 1954.
“It is quite possible that by using the same mechanism as has been adopted by the respondents for issuing Constitutional (Application to J&K) Order, 2019 and J&K Reservation (Amendment) Ordinance, 2019 the respondents will do away with Article 35-A of the Constitution of India and will also amend any State law including J&K Transfer of Property Act for doing away with the requirement of being a permanent resident of the State for acquiring any property in the State or applying for any job in any J&K department,” it states.
The petitioners have prayed that the J&K Reservation (Amendment) Ordinance, 2019, and Constitution (Application to J&K) Amendment Order, 2019, be declared as unconstitutional and be accordingly quashed and struck down.