Professor Dr. K. L. Bhatia
Without prejudice, the decision of the Hon’ble High Court of Jammu and Kashmir in Ashok Kumar v. State of J&K (9 October 2015) has some infirmities because it’s overreach and encouragement to pleas on Articles 370, 35-A of the Constitution of India and Constitutional (Application to Jammu and Kashmir) Order, 1954. The controversy raised in this case is succinctly crystallised: “Whether in light of the Apex Court judgment in Indra Sawhney v. Union of India, 1992, which prohibits reservation in matters of promotion, provisions of J&K Reservation Act, 2004 and the Rules framed thereunder can be enforced in the absence of the applicability of Article 16(4A) of the Constitution of India to the State of J&K?” Should the pleas other than the controversy be insisted on delusive exactness?
The first infirmity is reference to the Government of India Act, 1935 and the Indian Independence Act, 1947. Both these legislations are no more on the statutory books of India since they stand repealed under Article 395 of the Constitution of India from the date of adoption and enactment (26 November 1949) and enforcement (26 January 1950) of the Constitution of India. Constitution of J&K was adopted on 17 November 1956, signed by the Members of the J&K Constituent Assembly on 19 November 1956 and came into force on 26 January 1957 and resolutely mentioned that accession of the State with the Union of India was final, irrevocable, immutable and irreversible and the State is an integral part of the Union of India in its Preamble and Section 3. Constitutional (Application to Jammu and Kashmir) Order 1954 mentioned “Omitted” against Article 395 in its application to the State which could be interpreted as ‘Omitted’ in its application to J&K, meaning thereby that 1935 and 1947 Acts “Omitted” in application to J&K. In my humble submission, the plea and entertainment could have been impermissible because of its otherwise permutation and combination like going back to pre-1947 position which seems to be unfortunate. What Article 35-A, added by Constitutional (Application to Jammu and Kashmir) 1954, has to do with ‘reservation in promotion’? Article 35-A is subjudice and itself is debatable on the important questions of constitutional law vis-a-vis basic structure.
Prolific plea on “Instrument of Accession” is the second infirmity. Accession of the State with the Union of India is decisive and any plea or argument or presentation on it is not tantamount within the framework and structure of the Constitution, because, in the words of Dr. B. R. Ambedkar, on the floor of the Constituent Assembly of India, the Instrument of Accession shall hereinafter be a matter of past history. And, past history is dead inasmuch as deadwood and, therefore, any reference to it after the adoption and commencement of the Constitution of India shall not be encouraged to be reopened on any forum including the higher judiciary in national interest. Besides, there is a basic difference between accession and merger. Accession is in case of a princely State with the sovereignty of the Union of India; merger and acquisition is the consequence of an agreement that happens in case of a company with another company under the Companies Act and any reference to it shall be against unity and integrity of the Indian Nation. Unity and integrity of the Union of India is the basic structure of organic federalism where the States are on each other and not independent from each other and strive to promote amity and mutual respect for each other for the development and progress of Indian Nation.
Third infirmity concerns about the misconception of Article 16(4), (4A) and (4B). Reservation is an affirmative action and Articles 14, 15(4), 15(5), 16(4) (4A) (4B) form the complete code of affirmative action of the State not only on the basis of caste based ‘historical injustice’ or ‘historical prejudices’, but as a palliative action for the advancement of Socially and Educationally Backward Classes of the Citizens of India including scheduled Castes and Scheduled Tribes in matters of admission and public appointment and employment and consequential promotion. Articles 16(4A) and 16(4B) flow from Article 16(4) of the Constitution, and do not alter the structure of Article 16(4) of the Constitution. Section 6 of Jammu and Kashmir Reservation Act, 2004 read with Articles 16(4), 16(4A) 16(4B) do not wipe out any of the constitutional requirements such as ceiling limit and the concept of creamy layer and Scheduled Castes, Scheduled Tribes and Backward classes, as was held in Indra Sawhney case and reiterated in M. Nagaraj case (2006) and Suraj Bhan Meena v. State of Rajasthan (2011). Articles 14, 15, 16 form the structure of ‘equality’ as a magnum opus of the Constitution, and Articles 14, 15(4), 15(5), 16(4), 16(4A) and 16(4B) are the gospel of reservation as affirmative or palliative action of the State. Section 6 of J&K Reservation Act, 2004 from this perspective is an affirmative action or palliative action of the State. These Articles are inclusive to each other and not exclusive from each other is the message of the Apex Court in Maneka Gandhi case (1978). To say that Articles 16(4A) and 16(4B) have not been extended to the State of J&K by a Presidential Order under Article 370 shall be retrograde of Apex Court’s decisions in Maneka Gandhi and the ratio of Suraj Bhan Meena and Ram Singh v. Union of India (2015) and other identical cases. Reservation in promotion is impermissible unless it is justifiably identified that there is backwardness, inadequacy of representation in the higher cadre and eradication of inefficiency by providing reservation in promotion to improving efficiency in the administration. The State Government has identified Scheduled Castes, Scheduled Tribes, Residents of Backward Area (RBA), Actual Line of Control (ALC) and Social Castes (Weak and Under Privileged) as reserved categories for the benefits of affirmative action of the State for the purposes of Articles 15 and 16 to make rule of law to serve the rule of life. RBA, ALC and Social Castes have been identified as socially and educationally backward classes. It is submitted that the important issue of reservation in promotion could have been decided on the parameters of backwardness, inadequacy of representation and improving efficiency devised by the Apex Court in the significant decisions cited above and any other issue allowed to steal march over Articles 16(4), 16(4A) and 16(4B) does not seem to be an added attraction.
(The author is former Professor of Eminence National Law University Jodhpur; Head, Dean and founding Director The Law School University of Jammu)
Professor Dr. K. L. Bhatia