9911796707
TMI Blog1961 (3) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... uency in India. Six seats are allotted to the State of Jammu and Kashmir in the House of the People (Lok Sabha). Ordinarily, the election to these seats should have been by direct election from the territorial constituencies in the States as provided by Art. 81(1); but the President modified that Article in so far as it relates to the State of Jammu and Kashmir by Para. 5(c) of the Order in these words :- Article 81 shall apply subject to the modification that the representatives of the State in the House of the People shall be appointed by the President on the recommendation of the Legislature of the State. 2. The petitioner contends that the President had exceeded his powers when he made this modification, for he thereby substitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution will be excepted from application to the State of Jammu and Kashmir and on such order being made those provisions would not apply to that State. Besides this power of making exceptions by which certain provisions of the Constitution were not to apply to that State the President is also given the power to apply the provisions of the Constitution with such modifications as he thinks fit to make. The contention on behalf of the petitioner is that the modification envisaged in Art. 370(1) did not mean amendment of the Constitution for the purpose of application to that State and would not certainly include such amendment as would make a radical alteration in the provisions of the Constitution. In this connection he relies on the observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seats on the recommendation of the Legislature of the State. The President must therefore nominate only those who have been recommended by the Legislature of the State, which is elected on adult suffrage. Now the only way the Legislature can make a recommendation for this purpose is by voting. Therefore, in effect the modification made by the President is that the six seats to the House of the People from the State of Jammu and Kashmir will be filled by indirect election and not by direct election. The element of election still remains in the matter of filling these seats, though it has been made indirect. In these circumstances it may not be possible to say that there has been a radical alteration in Art. 81 by the modification effected b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o that State. If therefore the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word modification in Art. 370(1) the intention was that the President would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify it means that he may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu and Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word modification used in Art. 370(1) and in that sense it includes an amendment. There is no reason to limit the word modifications as used in Art. 370(1) only to such modifications as do not make any radical transformation . We are therefore of opinion that the President had the power to make the modification which he did in Art. 81 of the Constitution. The petition therefore fails and is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
