Reservation policy in J&K after scrapping of Article 370

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This article is written by Vanya Verma, from Alliance University, Bangalore. This article deals with the reservation policy in Jammu and Kashmir after the scrapping of Article 370 and new laws that came into force for reservation in the State.

Introduction

The Jammu and Kashmir Reservation Act, 2004 was applicable before the revocation of Article 370 and Article 35A of The Constitution of India, 1949. This Act was in force to provide job reservation in Jammu and Kashmir to the Scheduled Castes, Scheduled Tribes and Other Socially and Educationally Backward Classes. 

After Article 370 was repealed, The Jammu and Kashmir Reservation Act, 2004 was made applicable with certain amendments to the Union Territory of Jammu and Kashmir and Union Territory of Ladakh and is mentioned in The Jammu and Kashmir Reorganisation Act, 2019

The Upper House of the Parliament, Rajya Sabha passed The Jammu and Kashmir Reservation (Amendment) Bill. On 24 June 2019, the bill was introduced in the Lok Sabha by the Home Minister, Amit Shah, which was later passed by the Lok Sabha on 28 June 2019. The bill has partially amended the Presidential Order of 1954 to amend the Reservation Act of the State. The bill received the assent of the President on the 9th July 2019 and became an Act.

The Act provides reservation in the State Government jobs for appointments and promotions, admission for certain reserved categories to the professional institutions. Professional institutions include polytechnics, government medical colleges and dental colleges.    

It was said that 3.5 lakh residents of Jammu, Kathua and Samba district will be benefitted by this Act. The people of the State will get 3% reservation in educational institutions as well as in jobs. The reservation will also be given to the people living along the Line of Control (LoC) because of the hardships faced by them due to shelling across the border. 

The Regional parties in the State of Jammu and Kashmir had slammed this amendment and said that this is unconstitutional. Further, the Congress party said that this amendment will only alienate the people of the state by extending the President’s rule in the Union Territory of Jammu and Kashmir.

What is the need for reservation

The reservation is necessary to rectify the injustice that has been done to the people of backward castes in the country historically. The reservation extends to the people who belong to the economically backward sections and to bring them at par with the people who for centuries have had the access to resources and means. 

Reservation helps in ensuring that adequate representation is being provided to the people belonging to the backward class in the services that fall under the State as well as for the advancement of the socially and economically backward people. Reservation ensures equality as a basis of meritocracy i.e. before judging anyone on the basis of merit, all the people must be brought at the same level and then justice will prevail.

Reasons behind increasing demands of reservation

Reservation is now viewed as a remedy against the adverse effects of ill-thought-out of development policies. Although the economies are relatively better in the developed states of India like Maharashtra, Gujarat, and Haryana, still there are a few things that the people are worried about, these are as follows-

  • Stagnation in the growth of employment.
  • Acute agrarian suffering.
  • Distortions in the development trajectory.

For all these reasons, it is easier for the government to talk about reservation rather than making a course correction. Even the upper caste have started demanding reservation and their demand is increasing day by day as they have the fear that they will lose their privilege and will not be able to withstand the change. They have begun to feel disadvantaged and deprived especially in the government jobs as they are not getting the advantage that the people belonging to the backward classes are receiving.

The reason behind bringing the Act

The Jammu and Kashmir Reservation (Amendment) Act, 2019 has been enforced as the people staying across the international border often suffer from educational as well as socio-economic backwardness due to permanent cross border tensions. The situation sometimes becomes so worse that the people are forced to leave their residents and move somewhere to a safer place so that they can avoid the adverse impact that these activities have on their economy and education. Consequently, the people living in areas adjoining the international border had a continuous demand for a long time to bring them at par with the people who are living in the areas that are adjoining the Actual Line of Control. 

Ordinance (Temporary Law)

When one House of the Parliament is not in session, an ordinance or a temporary law is formed. Therefore, On 1st March 2019 the Jammu and Kashmir Reservation (Amendment) Ordinance, 2019 was promulgated by the President to provide the reservation benefit even to those people who live in the areas that are adjoining to the Actual Line of Control and international border. The ordinance was later repealed by the Jammu and Kashmir Reservation (Amendment) Bill which later became an Act.  

Extension of reservation 

The reservation in certain posts of the State Government has been provided under the Jammu and Kashmir Act, 2004 to the people belonging to the socially and educationally backward classes such as the Scheduled Castes and the Scheduled Tribes residing in regions adjoining the Actual Line of Control. The amendment has been made in this Act by the new Jammu and Kashmir Reservation (Amendment) Act, 2019 and it includes the people living in the regions adjoining the international border. 

The Act of 2004 lays down a condition that if any person has been appointed on the basis of residence, he/she must serve for a minimum of 7 years in the areas that are adjoining to the Line of Control. The amended Act of 2019 extends the same condition even to the people who are living in the areas adjoining the international border.

Exclusion from reservation 

It has been stated in the Jammu and Kashmir Act, 2004 that those people whose annual income exceeds the amount of Rs. 3 lakh or any other amount notified by the State government will not be included within the section of socially and educationally backward classes. This rule was only applicable to the people living in the areas that are adjoining the Actual Line of Control. By the amended Act of 2019, this will extend to the people living on the areas that are adjoining to the International Border.

Status of OBC in Jammu and Kashmir after scrapping of Article 35A and 370

Even after the scrapping of Article 370, many State laws are still applicable in the State of Jammu and Kashmir, this includes the Jammu and Kashmir Reservation Act 2004. On 16 November 1992, 27% quota was announced for reservation of the backward class, for the people who did not get any reservation in the category of scheduled caste by the nine judges bench of the Supreme Court. This implementation is taking place slowly in all the States as well as Union Territories of the country. Yet in Jammu and Kashmir, this judgement was not made applicable and thus making it the only Union Territory where the judgement was not applicable. This was because of Article 370 of the Indian Constitution that debarred the Central laws to be enforced in the Union Territory of Jammu and Kashmir, unless and until they were passed by the Jammu and Kashmir State Legislative Assembly. But now after scrapping Article 370 and 35A, central laws are applicable there.

Reservation percentage before scrapping of Article 370 in Jammu and Kashmir

On 21st October 2005, 28 social castes of Jammu and Kashmir were given OSC (Other Social Castes) nomenclature as per SRO (Statutory Regulatory Order), Annexure-D, only 2% reservation was given to the underprivileged people in the entire Jammu and Kashmir and no reservation at the district level. While 20% reservation was given to the falsely created categories in the State (now Union Territory) such as residents adjoining ALoC (Actual Line of Control), people at borderline, Pahari speaking people and RBA (Residents of Backward Area)  in addition to these 3% people living in the border and 3% Pahari. The State had no specific criteria to apply the quantum of reservation. 

After the scrapping of Article 370, 106 Central laws will be extended and enforced in the Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The words “except the State of Jammu and Kashmir” have been removed from the Central laws and Acts after Article 370 has been abrogated. The National Commission for Backward Classes Act, 1993, No. 27 of 1993 has to be made applicable in the Union Territory of Jammu and Kashmir. According to the DE dated 3 September 2019 Page 12, Government should implement it as far as OBC/OSC of Jammu and Kashmir are concerned, what is due to them in education and employment. In Jammu and Kashmir, new rules and regulations should be formulated as per other Union Territories of the country.

Social Welfare Department Notification SRO 294, dated 21 October 2005 should be repealed in Jammu and Kashmir as it has become defunct now. Union Territory of Jammu and Kashmir is fully eligible for the National Commission for Backward classes. New reservation percentages: Social Castes 4%, SCs 8%, STs 10%, ALC/IB 4%, RBA 10%, EWSs 10%. Horizontal reservation 6% to Ex-Servicemen and 4% to PHCs implemented by the government (Amendments in The Jammu And Kashmir Reservation Rules, 2005).

The Jammu and Kashmir Reservation (Second Amendment) Bill, 2019

On 5 August 2019, the Rajya Sabha passed The Jammu and Kashmir Reservation (Second Amendment) Bill, 2019.

Key features of the bill

The Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 aims to extend the 10% quota to the economically weaker sections in the Union Territory of Jammu and Kashmir, with special constitutional provisions. After the bill is passed by the Parliament, all residents of the Union Territory whose income is below Rs. 8 lakh per annum will be entitled to a 10% quota in Jammu and Kashmir.

By The Constitution (One Hundred And Third Amendment) Act, 2019 10% quota was extended by the Government of India to the people belonging to the economically weaker sections in the public employment and educational institutions. Thereafter to extend the provisions of this 103rd Amendment to the Union Territory of Jammu and Kashmir, the President of India issued the Constitution (Application to Jammu and Kashmir) Amendment Order, 2019 on the 1st March 2019. Several State Governments have already implemented the reservation order since then.

According to the Jammu and Kashmir Reservation Act, 2004, the total reservation percentage in the State cannot exceed 50%. The 103rd Amendment Act will be applicable in Jammu and Kashmir after this provision in the Jammu and Kashmir Reservation Act, 2004 is amended. At present the 2004 Act provides reservation to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes and Social Castes including people living in the Actual Line of Control and International Border.

Constitutional amendment

In January 2019, the parliament passed the 103rd Amendment Act, 2019 which provides special provision for the citizens belonging to the economically weaker sections of the society other than the ones who already exist under the Constitution such as Scheduled Castes, Scheduled Tribes, etc. This amendment also extends to the public jobs and for admission in the educational institutions.

The 103rd Amendment enabled the State Governments to make laws in order to provide reservation on the basis of the economic condition of the people. Several states such as Uttar Pradesh, Maharashtra and Gujarat soon passed laws related to the same. The aim of this amendment is to lift the poor as income is the criteria to avail the benefit of this legislation. 

Objectives of the bill

To implement the provisions given under the Constitution 103rd Amendment Act, 2019 in Jammu and Kashmir, necessary amendments have to be made in the provisions of the Jammu and Kashmir Reservation Act, 2004. Therefore, the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 provides the following:

  • To make amendments in Section 2 of the Jammu and Kashmir Reservation Act, 2004 in order to define the ‘economically weaker sections’ to mean such categories that are notified by the government from time to time that can be on the basis of family income or any other criteria related to economic disadvantage other than categories defined under clause (m), (n) and (o) of Section 2.
  • To amend Section 3(1) of the Jammu and Kashmir Reservation Act, 2004 Act, for inserting the clause related to the  economically weaker section and to provide that the reservation to economically weaker sections shall be subject to a maximum of 10% of the jobs in each category
  • To amend Section 9(1) of the Jammu and Kashmir Reservation Act, 2004 Act, to insert the related to the economically weaker sections and provide that reservation to this category shall be subject to a maximum of 10% of the seats in each category.

Conclusion

As the central laws were not applicable in the Union Territory of Jammu and Kashmir till 2019, it is now after scrapping of Article 370 central laws can be made applicable and people of this region avail the benefit of reservation. The first amendments made in the reservation legislation majorly talks about people living in the areas adjoining International Border while the second amendment bill includes the economically weaker section of the society that is necessary to uplift the poor sections living in the Union Territory.

References


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