IOK Governor has no authority to recommend amendments in Article 370
Srinagar, March 02, 2019 (PPI-OT): In occupied Kashmir, the constitutional experts have said that Governor Satya Pal Malik had no authority to recommend any amendments in Article 370 of the Indian Constitution that grants special status to Jammu and Kashmir. The Indian Government Thursday gave nod to the promulgation of an ordinance for giving reservation benefits to Special Casts and Special Tribes in occupied Kashmir by amending a clause of Article 370. The amendment was made on the recommendation of Governor Satya Pal Malik.
Noted lawyer Zafar Ahmed Shah, who pleads constitutional and legal matters in Kashmir High Court and Indian Supreme Court, in an interview said that as occupied Kashmir was under the President Rule, the Governor could not give the requisite recommendation to the Government of India. “It is a fraud on constitution. The Governor, being an agent of the President, can’t recommend Government of India to make amendments on Article 370 under 1954 Presidential application orders,” he said.
Zafar Shah termed it a dangerous precedence and said Government of India’s decision could be challenged in the court. “There is no objection on the merits of amendment. The concern is in the absence of an elected government, which is the authorized body to recommend such amendments. How come Governor is taking such decisions on his own? We are raising the fundamental question,” he said.
As per the rule books, Government of India cannot amend 1954 presidential order on the recommendation of its own nominee. It has to get consent of the local elected government. Sheikh Showkat Hussain, a constitutional and law expert, said the Governor cannot act as a substitute to a Chief Minister. “The Governor is not an elected representative of the people.
He is working at the behest of the Indian President in Kashmir. So, under the law, he has no powers to recommend any amendments in Article 370,” he said. “How can Government of India appoint a person who will recommend its own government to make changes in the laws of a State?” he added. Sheikh Showkat Hussain pointed out that by setting this precedence, Government of India could also abolish Article 35-A or Article 370 in future.
Meanwhile, the High Court Bar Association of occupied Kashmir said that the amendment was clearly a fraud on the provisions of Article 370 of the Constitution of India and therefore unconstitutional, liable to be rolled back. The Bar Association while holding a daylong meeting at High Court Complex, Srinagar, said the Indian government cannot amend the Article 370 purportedly on the recommendations of State Administrative Council (SAC), headed by Governor.
The HCBA remarked that the Governor of occupied Kashmir is an agent of the President of India and cannot make any kind of recommendations for issuing any Ordinance or order. It said that occupied Kashmir was under President’s Rule since 19th December 2018 and the President had assumed all the functions of the territory and all powers vested or exercisable by the Governor.
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