A question of federalism

A question of federalism

J&K Reservation Bill


Recently, Parliament passed the Jammu and Kashmir Reservation Bill which seeks to amend a Presidential Order of 1954 in order to change how reservation was applied in Jammu and Kashmir. The Bill awaits Presidential assent to become law. Given that Jammu and Kashmir does not have an elected government at present and is functioning under the Governor, the Bill has several implications for the federal character of the Constitution.

With the constitutional amendment, the benefits of reservation available to the residents along the Line of Actual Control (LAC) have been extended to residents living along the International Border (IB). This benefits residents in Jammu, Samba and Kathua.

Through the Presidential Order, the Cabinet applied the 77th Constitutional Amendment of 1995 to J&K, giving benefits of reservation in promotion to Scheduled Castes and Scheduled Tribes in government service. The Cabinet also applied the 103rd Constitutional Amendment of 2019 to J&K, which gave 10% reservation to Economically Weaker Sections among people in the general category.

While there has been no opposition to the move to extend the benefit of reservation, the Bill has been questioned on the methods adopted by the Centre in the absence of an elected government in Jammu and Kashmir. The 1954 order is an executive order issued by the President under Article 370 to extend provisions of an Act of Parliament to J&K state, which can be done only with the concurrence of the state government.

The mechanism for governance of Jammu and Kashmir has been provided in Article 370 of the Indian Constitution. Article 370 defines the state government as ‘the Maharaja’ and/or the ‘Sadar-i-Riyasat’ aided by a council of ministers. At the centre of the controversy is the question whether the Governor, in the absence of an elected government, has the authority to give consent to extend a law of Parliament and change the constitutional arrangement between J&K and the Union.

The issue of the Governor’s powers was defined by the Supreme Court in Mohammad Maqbool Damnoo vs State of J&K (1972). While dealing with the replacement of an elected government with the Centre-appointed Governor, the court observed that a Governor is the “head of government aided by a council of ministers”. “It is not as if the state government, by such a change (replacing elected [government] with Centre-appointed Governor) is made irresponsible to the state legislature… there is no question of such a change being one in the character of the government from a democratic to a non-democratic system.”

India has adopted federalism to actualise and uphold the values of national unity, cultural diversity, democracy, regional autonomy and rapid socio-economic transformation through collective efforts. Federalism is a device by which the plural qualities of a society are articulated and protected. A product of historical forces in plural societies, federalism is devised to secure both regional autonomy and national unity. The strength of these regional and national forces changes from time to time, in keeping with changing social, economic and political conditions and compulsions.

Federalism is a principle which defines the relationship between the central government at the national level, and the constituent units at the regional, state or local levels. A well-designed and, more importantly, a well-functioning system of federal governance, by virtue of its manifold benefits, plays a key role in promoting the stability and prosperity of nations, as the heights attained in development by the leading federations of the world — USA, Canada, Australia and Switzerland — demonstrate.

In D C Wadhwa vs State of Bihar (D C Wadhwa), it was held that “It is a right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions.” In the present case, laws made in accordance with the Constitution would imply that Parliament is bound to have the concurrence of an elected government. As such an elected government does not at present function in J&K, the Bill would not be in accordance with the Constitution.

The Bill may also affect the rule of law guaranteed by Article 14 of the Constitution. “The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State, whether it be the Legislature or the Executive or any other authority, should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations…a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of the Supreme Court to entertain the writ petition and adjudicate upon the validity of such practice”, held the Supreme Court in D C Wadhwa.

The Centre has said that the amendments were recommended by the State Administrative Council (SAC) headed by the J&K Governor. If this entire episode is interpreted in the light of the Supreme Court judgement in Mohammad Maqbool Damnoo vs State of J&K, one may also reach a conclusion that the above act of the Union government is intra vires of the Constitution as “there is no question of such a change [from elected government to the Governor] being one in the character of the government from a democratic to a non-democratic system.”

It is pertinent to note here that the amendments introduced through the Bill were earlier approved as an ordinance by the Union Cabinet in February this year. Multiple petitions were filed in the court to determine the constitutionality of the ordinance. Now, a material change has been brought by introducing the ordinance as a Bill. It will be interesting to see how the courts approach the Bill if it becomes law. This will contribute towards a new understanding of the federal character of the Constitution.

(The writer is an independent legal researcher)