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HC seeks Govt's response to plea against reservation ordinance 2019
3/19/2019 12:16:17 AM
Early Times Report

Srinagar, Mar 18: The State High Court today issued a notice to union of India and J&K government on a petition, seeking its directions to declare Jammu and Kashmir Reservation (Amendment) Ordinance, 2019 and Constitution (Application to Jammu & Kashmir) Amendment Order 2019, as unconstitutional and quashing tit. A single judge of Justice Rajesh Bindal issued the notice, seeking response within four weeks to the petition filed by Kashmir High Court Bar Association. The case has been ordered to be posted again in the week commencing from 3rd week of April.
Union cabinet headed by Prime Minister Narendra Modi approved the J&K Reservation (Amendment) Ordinance, 2019 to "bring persons living in remote and inaccessible areas under reservation ambit."
The Cabinet had also approved amendment to the Constitution (Application to Jammu and Kashmir) order 1954 by the way of Constitution (Application to Jammu & Kashmir) amendment order, 2019.
This, according to government, will provide 10 per cent reservation for economically weaker sections, which includes Scheduled Castes, Scheduled Tribes, in educational institutions and government job in addition to the existing reservation in Jammu and Kashmir. The lawyers' body said that Union Cabinet, through Cabinet Secretary on February 28 in "blatant violation of Article 356 of the Constitution of India" approved a proposal of the J&K government regarding amendment to the Constitution (Application to Jammu & Kashmir) Order, 1954, by way of Constitution (Application to Jammu & Kashmir) Order, 2019, whereunder, 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.
"(The Bar Association) genuinely believe that the Constitution (Application to Jammu and Kashmir) Order, 2019, as also J&K Reservation (Amendment) Ordinance, 2019 have been issued by Ministry of Law & Justice (Legislature Department) Govt. of India, New Delhi on the approval of Union Cabinet without any power authority and competence".
The Bar has challenged on the grounds that the Constitutional (Application to J&K) Order, 2019, is ex-facie unconstitutional because the Constitution of India doesnot apply to the State of J&K on its own force. "It applies to the State by virtue of Article 370 of the 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.
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 the State of J&K.
"Whenever a President's Rule is declared under Article 356 of the Constitution of India, in any State, the functions of the State Govt. vest with the President and the power of Legislature i.e., the power to make or amend laws vests with the Parliament. It is only the Parliament which can make or amend any law, during the President's Rule. In that view of the matter it was not the President but the Parliament which could amend a State Law. "
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