Srinagar September 30: Supreme Court today heard a Writ Petition filed by the Vice President of Awami National Conference Muzaffar Shah in 2019 challenging the extension of 77th and 103rd Constitutional Amendments to Jammu & Kashmir.
The 77th Amendment provides for reservation in promotions and public appointments to the members of Schedule Caste and Schedule Tribes while 103rd Amendment relates to reservation for the member of Economically Weaker Sections.
Shah was represented by former union minister and Senior Advocate of Supreme Court Salman Khurshid assisted by former Dy. Advocate General, J&K Suhail Malik.
In its Petition before the Supreme Court, Shah had challenged the extension of Amendments by the President of India on the ground that the same is in violation of Article 370 (1) (b) (ii) as it stood then in March, 2019 and also the 2017 law laid down by the Supreme Court in Krishna Kumar’s case which said that an ordinance must be promulgated when “immediate action” is required as
contemplated under Article 123 of the Constitution.
Shah in his petition said that a constitutional authority cannot do indirectly what it is not permitted to do directly.
“If there is a constitutional
provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would clearly be a fraud on the
constitution,” he said.
After hearing the arguments by Khurshid, the bench of Justice D.Y. Chandrachud and Hima Kohli said that they will hear the matter in detail immediately after the other petitions challenging abrogation of Article 370 are heard post Dussehra. The issue is quite contentious as this petition challenges a decision which was taken before Article 370 was repealed.
This case may also have a direct consequence on the J&K Reservation Amendment Act, 2019 whereby the benefit of reservation was extended to people living near international border. Earlier, the same was restricted to backwards areas and people living near line of actual control.
Addressing media persons, Shah said that the President could not have passed these orders because in 2019 there was no legislative assembly and concurrence of then Governor Satya Pal Malik to the promulgation cannot be treated as the concurrence of the people of J&K.
We will be aggressively contesting other petitions challenging abrogation of Article 370 which are coming up after Dussehra, Shah said.