Long before NGO ‘We the Citizens’ challenged in the Supreme Court President’s powers to incorporate Article 35A, which defines J&K state subjects and rights enjoyed by them exclusively, in the Constitution of India, the Supreme Court had on two occasions in the past upheld President’s authority to make such changes.
In 1961, petitioner Puranlal Lakhanpal challenged President’s power to modify Article 81 (1) allowing nomination, instead of election, of members from J&K to Lok Sabha.
The petitioner had contended that election to six LS seats in J&K should have been held by direct election under Article 81(1) of the Constitution, but the President modified the Article under Article 370 (1) to allow appointment of J&K members by the President on recommendations of the state legislature.
The petitioner had argued the President exceeded his powers by substituting direct election by nomination, and that modification amounted to radical alteration in Article 81 and was not justified by word “modification” under Article 370(1).
What Apex Court said?
But when Constitution bench delivered the judgment on 30 March 1961, it held word “modification” used in Article 370(I) must be given “widest meaning” in the context of the Constitution.
“The object behind enacting Article 370(l) was to recognise special position of J&K and to provide for that special position by giving power to President to apply provisions of the Constitution to J&K with such exceptions and modifications as he might by order specify…it seems that when President is given power to make modifications that power should be considered in its widest possible amplitude. If we could efface a particular provision of Constitution altogether in its application to J&K, we see no reason to think the Constitution did not intend that he (President) should have power to amend a particular provision in its application to J&K,” the court said in judgment, adding it seems when Constitution used word “modification” in Article 370(l) the intention was President would have power to amend provisions of Constitution, if he deemed fit, in their application to J&K.
Also, referring to meaning of word “modify” and “modification” in Oxford English Dictionary and in “Words and Phrases” by Roland Burrows, the court had concluded that in context of Constitution “we must give widest effect to meaning of word modification used in Article 370(l) and in that sense it includes an amendment”.
“There is no reason to limit word modifications as used in Article 370(1) only to such modifications as do not make any radical transformation. We are therefore of opinion that the President has power to make modification which he did in Article 81 of the Constitution,” the bench concluded.
Former advocate general Jehangir Iqbal Ganie said if state government argues the case on similar lines there was least possibility the case would be referred to Constitution bench. Instead, he said, the petition was liable to be dismissed.
“Having regard to law laid down by Supreme Court, the ground taken by the petitioner that the President has no powers to amend the constitution while applying provisions of Constitution to the state pales into insignificance,” said Ganai, adding the President has powers to carve expectations and modification in Constitution under Article 370.
A senior official in law department said President’s power was challenged at a time members from J&K were nominated to the LS. But, the official said, the process was many years later changed to election by way of application of changes in the Article through Constitution Application Order No. 98.