Guv ‘agent of President of India’ can’t make recommendations for issuing any Ordinance: JKHCBA

Srinagar: Jammu and Kashmir High Court Bar Association on Friday said in view of the resident’s rule in Jammu and Kashmir, Governor is “agent of the President of India” and an agent cannot make any kind of recommendations for issuing any Ordinance or order.
According to a statement issued here on Friday, JKHCBA said, “The Central Govt. at a point of time, when the Supreme Court is already seized of the writ petition challenging constitutional validity of Article 35-A of the Constitution of India as applicable to the State of J&K, has come out with the J&K Reservation (Amendment) Ordinance to amend J&K Reservation Act, 2004, and Constitution (Application to Jammu and Kashmir) Amendment Order, 2019, to amend the Constitution (Application to Jammu and Kashmir) Order, 1954, purportedly on the recommendations of State Administrative Council (SAC), which council after the Presidential Proclamation of Emergency dated 19.12.2018, has ceased to exist, therefore, could not have made any recommendation.”
“It hardly needs to be mentioned that in terms of Presidential Proclamation of Emergency dated 19.12.2018, the President has assumed all the functions of the State and all powers vested or exercisable by the Governor and in exercise of those powers or functions it has been declared by the President lawful to act to such extent as he thinks fit, through the Governor.
The Governor is thus an “agent of the President of India” and an agent cannot make any kind of recommendations for issuing any Ordinance or order,” the statement added.
It is also relevant to mention here that in terms of another notification issued by the President on 19.12.2018 itself, the Governor has to exercise only those powers granted to him subject to superintendence, direction and control of the President, making it further clear that the concurrence given by the Governor, in the instant case, is a concurrence from Ceaser to Ceaser’s wife.
Given the timing chosen by the Central Govt. to issue the Ordinance and the order prompted the J&K High Court Bar Association, Srinagar, to deliberate on the issue and to take a closer look at the Ordinance and the order from the constitutional perspective.
Accordingly, the J&K High Court Bar Association, Srinagar, Friday on 01st of March, 2019, in a daylong meeting held at High Court Complex, Srinagar, examined in great depth the ordinance as well as Constitutional Application Order, 2019 from the Constitutional perspective and found that the Ordinance and the order issued is not what it purports to be, but in essence and substance merely a cloak to extend to the State of J&K the constitutional amendments carried out in the Constitution of India by the Constitution (seventy-seventh Amendment) Act, 1995 as well as the 103rd Amendment effected to the Constitution of India, creating provision for Reservations for Economically Backward members of the Society, it added.
“Be noticed, that the constitution of India does not by its own force apply to the State of J&K and its provisions can be extended only in accord with the mechanism constitutionally provided and prescribed under Article 370 of the Indian Constitution,” it said.
Article 370 of the Constitution provides thus: –
Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution, –
(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to-
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists, as, with the concurrence of the Government of the State, the President may by order specify.
*1&2Explanation: For the purposes of this article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat of Jammu and Kashmir acting on the advice of the Council of Ministers of the State for the time being in office;
*1[“Sadr-i-Riyasat” substituted for “Maharaja” vide Amendment made by the President on 17th of November, 1952] and 2[“Governor” substituted for “Sadr-i-Riyasat” vide Amendment made vide (Sixth Amendment) Act, 1965]
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order (46) specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government……
Given the constitutional mandate enshrined in Article 370, as regards, the application of the provisions of the constitution of India to the State of J&K, as well as the constitutional authorities, designated thereunder and the dispensation at the helm of affairs in the State of J&K at present, the Ordinance issued by the Central Govt, therefore, is clearly a fraud on the provisions of Article 370 of the Constitution of India and therefore unconstitutional, liable to be rolled back.
The Bar Association also finds that the notification dated 28.02.2019, declaring “Jamaat-i-Islami” as an unlawful association, is also legally and constitutionally invalid because it is aimed at to deprive the Kashmiri Muslim students to receive education in the schools run by Falah-i-Aam Trust, which is their fundamental right and also to curb the peaceful religious activities of the said organization which is clearly an interference with the religious affairs of Muslims of Kashmir. The meeting which lasted upto 5:00 p.m. and remained inconclusive. The matter will be further discussed in the next meeting to be notified shortly.