‘Centre can’t extend laws on JK without elected government’

Article 370

SRINAGAR — Top constitutional experts of Jammu & Kashmir have termed the extension of 77th Amendment (Reservation in promotion for Schedule Castes and Schedule Tribes in J&K) and 103rd Amendment (Reservation for Economically Weaker Sections in J&K) an assault on constitution and an overt and covert attempt to further erode Article 370 in violation of the institutional constitutional mandate to be exercised only by a popular government in Jammu and Kashmir.

One of the constitutional experts even said that Farooq Abdullah as Jammu & Kashmir Chief Minister committed a historical blunder by pushing through an ordinance of the Central Government on POTA (Prevention of Terrorism Act) when his party had a thumping majority in the Assembly.

The former judge of Jammu & Kashmir High Court and a top constitutional expert of the state, Justice (Retd) Hasnain Masoodi said, “Power belongs to people, to be exercised by their elected government and not the Governor appointed by the President”, adding that, “When Article 370 insists on consent and concurrence of the Jammu & Kashmir Government, there is an implicit power given to the Government to withhold such concurrence or consent”.

Saying that the “power to give concurrence or consent to any constitutional amendment in Article 370 lies only with the elected government of Jammu & Kashmir, the former Judge of the Jammu & Kashmir High Court said, “The extension of a constitutional provision results in corresponding surrender of a segment of residual sovereignty of Jammu & Kashmir state”.

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It is in place to mention here that Justice (Retd.) Hasnain Masoodi is known for his landmark judgment on Article 370 in which he has observed that Article 370 can’t be tinkered with or scrapped under any circumstances.

Terming the extension of 77th Amendment and 103rd Amendment a big fraud committed on the constitution, the senior advocate at Jammu & Kashmir High Court and another leading constitutional expert of Jammu & Kashmir, Zaffar Ahmad Shah said, “Since the state is under President’s rule and there is no popular government in place, the Governor’s administration can’t make any recommendation for extension of any constitutional provision of India to Jammu & Kashmir. The extension of any provision of the constitution of India by the President of India or the Union cabinet on the recommendations of the Governor’s administration is challengeable in the court of law”.

Another leading constitutional expert of the state and former Jammu & Kashmir Advocate General, Aslam Goni said, “Ordinance from the Central government cannot be extended to Jammu & Kashmir without the concurrence and consent of the state legislature. Former Chief Minister Farooq Abdullah committed a historical blunder by bringing an ordinance on POTA to Jammu & Kashmir Assembly and pushing it through when he had thumping majority in the Assembly.”

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He added, “Broadly speaking, the reservation in jobs is on the State List but not on the Union List and henceforth, the domain of only a popular government in Jammu & Kashmir. Fiddling with the constitution is though continuing for eroding Article 370 but the extension of the 77th and 103rd Constitutional Amendment is an attempt to further erode Article 370.”

A senior advocate at Jammu & Kashmir High Court and a leading constitutional expert of the state, Zaffar Qureshi said, “Since 3% reservation already enjoyed by the people living near LoC in Jammu can be increased or reduced by a simple administrative order, there is no need of extending any constitutional amendment in absence of a popular government in Jammu & Kashmir.”

“There is no international border in Jammu & Kashmir and only Line of Control (LoC) is the demarcation line on borders in the state. International border is only in other states of the country but unfortunately in misinterpretation of the facts, the government is calling LoC in some areas of Jammu as international border. No constitutional amendment of the Central government can be extended to Jammu & Kashmir unless and untill a concurrence and consent is not given by a popular government of Jammu & Kashmir,” he said. (KNS)

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