What is the issue?

• The Centre's executive order amending the Constitution (Application to Jammu and Kashmir) Order, 1954 is challenged in the J&K high court.
• Here is a brief look on the evolution and purpose of the 1954 Order and the disputes related to it.

What is the executive order for?

• The Union Cabinet recently approved the proposal of the J&K Governor’s administration to amend the Constitution (Application to Jammu and Kashmir) Order, 1954.
• Following this, President Ram Nath Kovind issued an executive order amending the 1954 Order.
• The objective was to extend the provisions of the 77th and 103rd Constitutional Amendments to the state.
• The Centre said that the amendment would give benefit of promotion in service to the Scheduled Castes, and Scheduled Tribes.
• It would also extend the 10% reservation for economically weaker sections in educational institutions and public employment.
• The Centre’s move has now been challenged in the Jammu & Kashmir High Court.

Why is it being challenged?

• Major J&K parties said the order violated Article 370 which regulates J&K’s relationship with the Union.
• The power of the Governor to make the recommendation without the concurrence of the state government has been challenged.
• The petition pleaded the court to struck down -

1. The Constitution (Application to Jammu & Kashmir) Amendment Order, 2019
2. The Jammu and Kashmir Reservation (Amendment) Ordinance, 2019

• In 1986 too, an amendment to the 1954 Order was issued just with the concurrence of Governor's administration.
• It extended to J&K, Article 249 of the Indian Constitution, which describes the power of Parliament to legislate, in the national interest, even on matters in the State List.
• The petition challenging this is still pending.

What were the terms of J&K's entry into Indian Union?

• Maharaja Hari Singh, who was ruling J&K, signed the Instrument of Accession (IoA) in October, 1947.
• J&K then gave up control over only 3 subjects which are Defence, Foreign Affairs, and Communications.
• A separate Constituent Assembly of J&K was planned to frame the J&K Constitution, and to work out J&K’s constitutional relationship with New Delhi.
• Under Article 370 of the Indian Constitution, only two articles of the Constitution apply to J&K.
• One is Article 1 which defines India, and the other is Article 370 itself.
• Article 370 provides that other provisions of the Indian Constitution can apply to J&K “subject to such exceptions and modifications as the President may by order specify”.
• Notably, this is done only with the concurrence of the state government.

What was the 1954 Presidential Order for?

• The decisions to extend the provisions of the Indian Constitution other than those specified in the IoA had to be ratified by the J&K Constituent Assembly.
• The J&K Constituent Assembly was yet to be set up then.
• But the Centre wanted to extend a few provisions of the Constitution to streamline J&K’s relationship with the Union.
• Thus, a Presidential Order was issued on January 26, 1950 itself, with the state government’s concurrence.
• On November 5, 1951, J&K’s Constituent Assembly was convened.
• Soon, the 1950 Order was replaced by The Constitution (Application to Jammu and Kashmir) Order, 1954.
• This Order applied to J&K the provisions of Part-III of the Indian Constitution that relates to fundamental rights.
• Besides, it introduced Article 35A which protected laws passed by the state legislature of J&K in respect of permanent residents.
• Any protections offered to its residents cannot be challenged on the ground that they violated any of the fundamental rights.
• This order was ratified by the Constituent Assembly that also framed the J&K Constitution, before dispersing in November, 1956.

What is the contention thereafter?

• The 1954 Order had the requisite concurrence of both the state government and the J&K Constituent Assembly.
• But subsequently, 42 Presidential orders have been issued, all of which were amendments to the 1954 mother order.
• Through these orders, successive central governments have extended 94 out of the 97 entries in the Union List, and 26 out of the 47 in the Concurrent List to J&K.
• They have also made 260 out of the 395 Articles of the Indian Constitution applicable to J&K.
• This list does not include The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, and the GST Acts.
• But notably, none of these amendments to the 1954 Order have fulfilled the requirement of ratification by the J&K Constituent Assembly.
• To this, the Centre has argued that an elected state government’s consent is enough.

• In 1959, the Supreme Court too observed that the Constitution-makers were anxious that the said relationship should be finally determined by the State's Constituent Assembly itself.
• A decade later, the court ruled that Presidential orders could still be made through Article 370.
• Also, in 1972, the court said the Governor is the head of government aided by a council of ministers.

Is the present order justified?

• The latest order only has the consent of the Governor without the requisite aid and advice of the Council of Ministers.
• Understandably, the Governor acts only as a nominee of the Union government.
• S/he does not meet the definition of state government as laid down by Article 370 and the Supreme Court.
• Major J&K parties have also always opposed the amendments to the 1954 Order without ratification by the Constituent Assembly of the state.