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PETITIONER: PURANLAL LAKHANPAL

       Vs.

RESPONDENT: THE PRESIDENT OF INDIA AND OTHERS

DATE OF JUDGMENT: 30/03/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1519            1962 SCR  (1) 688  CITATOR INFO :  F          1970 SC1118  (14)

ACT: Parliamentary  Election-Seats allotted to Jammu and  Kashmir --Mode   of   election--Modification  made   by   President- Constitutionality-Constitution  of India, Arts. 81,  370(1)- Constitution (Application to Jammu and Kashmir) Order, 1954, Para. 5(c).

HEADNOTE: Six seats are allotted to the State of Jammu and Kashmir  in the House of People (Lok Sabha) and election to those  seats should  ordinarily have been by direct election  under  Art. 81(1)  of the Constitution but the President  modified  that Article under Art. 370(1) by Para. 5(c) of the  Constitution (Application  to  Jammu  and Kashmir) Order,  1954,  to  the effect  that "the representatives of the State in the  House of  People  shall  be  appointed by  the  President  on  the recommendations  of  the  Legislature of  the  State".   The petitioner  who  claimed to be a registered elector  and  as such   eligible   for  election   from   any   Parliamentary constituency  in  India  contended that  the  President  had exceeded  his powers when he made this modification  for  he thereby  substituted direct election to the House of  People by nomination which he could not do, and that the said modi- fication  amounted to radical alteration in Art. 81 and  was not justified under Art. 370(1). Held, that the word "modification" used in Art. 370(I)  must be  given the widest meaning in the context of  the  Consti- tution  and  in that sense it includes an amendment  and  it cannot  be limited to such modifications as do not make  any "radical  transformation".  The modification lays down  that the President will make the nomination on the recommendation of the State Legislature which can do so only by voting, and in  effect  it  provides that the seats will  be  filled  by indirect  election and not direct election.  The element  of election  being  thus  still present there  was  no  radical alteration  in  Art. 81 and the President had the  power  to make the modification which he did.

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In   re   Delhi   Laws  Act,  1912,   [1951]   S.C.R.   747, distinguished.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 139 of 1957. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental rights. R.  V. S. Mani, for the petitioner. 689 C.   K. Daphtary, Solicitor-General of India, B. Sen and  R. H. Dhebar, for respondent No. 2. 1961.  March 30.  The Judgment of the Court was delivered by WANCHOO,  J.-This petition challenges the  constitutionality of a provision in the Constitution (Application to Jammu and Kashmir) Order, 1954 (hereinafter called the Order), made by the  President under Art. 370(1) of the  Constitution.   The case  of  the  petitioner is that he  is  registered  as  an elector in the Parliamentary Constituency of Delhi.  As such he has a right to stand for election from any  Parliamentary constituency 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(l); 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  -,hall  be               appointed    by   the   President    on    the               recommendation  of  the  Legislature  of   the               State." The petitioner contends that the President had exceeded  his powers  when  he  made this  modification,  for  he  thereby substituted  direct election to the House of the  People  by nomination  which  he could not do.  This, it is  said,  was alteration  in Art. 81 as applied to the State of Jammu  and Kashmir  and was not justified as a modification under  Art. 370(l).   He therefore prays that the modification made  may be  declared unconstitutional and a writ of quo warranto  be issued  against  the persons nominated to the House  of  the People on the recommendation of the Legislature of the State of Jammu and Kashmir prohibiting them from acting as members of Parliament. Apart  from  the  question whether the  petitioner  has  any fundamental right to maintain this petition under 87 690 Art.  32,  we are of opinion that there is no force  in  it. The relevant part of Art. 370 with which we are concerned is in these words:-               "Notwithstanding  anything in  this  Constitu-               tion,-                ...................................               (d)   such  of  the other provisions  of  this               Constitution  shall apply in relation to  that               State  (i.e., the State of Jammu and  Kashmir)               subject  to such exceptions and  modifications               as the President may by order specify." Article  370 clearly recognises the special position of  the State of Jammu and Kashmir and that is why the President  is given the power to apply the provisions of the  Constitution to  that State subject to such exceptions and  modifications

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as  the President may by order specify.  The President  thus has  power  to say by order that certain provisions  of  the Constitution 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(l)  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 observations  of Kania, C.J., and Mahajan, J., in In re  The Delhi  Laws Act, 1912 (1).  Kania, C.J., after dealing  with the  meaning of the word "  modify" seems to have held  that the  word  "modify" as used in the context in which  he  was speaking   only    implied   alteration   without    radical transformation.   Mhajan,  J.,  also  said  that  the   word "modification" Use in the context before him did not involve "any  material or substantial alteration".   The  petitioner therefore urges (1)  [1951] S.C.R. 747. 691 that as the Order substituted direct election by  nomination there  has  been  a radical alteration in  Art.  81  by  the President  in  its  application to the State  of  Jammu  and Kashmir   and  therefore  is  not  justified  by  the   word ’modification"  used  in Art. 370(l) and the  President  had exceeded his power under that Article in making this radical alteration. Before we consider what the word "modification" means in the context  of Art. 370(l), let us see what the  President  has actually done in the matter of modification of Art. 81.  The modification  prescribes that the six seats in the House  of the  People  from the State of Jammu and  Kashmir  would  be filled by nomination by the President on the  recommendation of  the  Legislature of that State.  Now in form  the  seats will  be  filled  by nomination by  the  President;  but  in reality what the modification provides is indirect  election in  place of direct election to these seats in the House  of the  People.  The modification lays down that the  President will   nominate   members  to  these  six   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  by  the Order. But even assuming that the introduction of indirect election by  this  modification  is  a  radical  alteration  of   the provisions of Art. 81(l), the question still remains whether such a modification is justified by the word  "modification" as  used  in  Art. 370(1).  We are  here  dealing  with  the provision  of a Constitution which cannot be interpreted  in

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any narrow or pedantic sense 692 The question that came for consideration in In re Delhi Laws -Act case(’) was with respect to the power of delegation  to a  subordinate authority in making subordinate  legislation. It was in that context that the observations were made  that the  intention of the law there under consideration when  it used the word "modification" was that the Central Government would  extend  certain  laws to Part C  States  without  any radical alteration in them.  But in the present case we have to  find out the meaning Of the word "modification" used  in Art. 370(l) in the context of the Constitution.  As we  have said  already the object behind enacting Art. 370(l) was  to recognise  the  special position of the State of  Jammu  and Kashmir  and to provide for that special position by  giving power  to  the  President to apply  the  provisions  of  the Constitution   to  that  State  with  such  exceptions   and modifications  as the President might by order specify.   We have  already pointed out that the power to make  exceptions implies  that  the President can provide that  a  particular provision of the Constitution would not apply to 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 be 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(l) the intention  was  that the President would have the  power  to amend  the provisions of the Constitution if he  so  thought fit in their application to the State of Jammu and  Kashmir. In  the  Oxford  English  Dictionary  (Vol.   VI)  the  word ’modify"  means inter alia "to make partial changes  in;  to change (as object) in                             693 respect  of some of its qualities; to alter or vary  without radical transformation".  Similarly the word  "modification" means  "the  action of making changes in an  object  without altering  its  essential nature or character; the  state  of being  thus changed; partial alteration".  Stress  is  being placed  on  the meaning "to alter or  vary  without  radical transformation" on behalf of the petitioner; but that is not the  only meaning of the words "modify"  or  "modification". The  word "modify" also means "to make partial  changes  in" and "modification" means "partial alteration".  If therefore the  President  changed  the method of  direct  election  to indirect election he was in essence making a partial  change or   partial  alteration  in  Art.  81  and  therefore   the modification  made in the present case would be even  within the dictionary meaning of that word.  But, in law, the  word "modify"  has even a wider meaning.  In "Words and  Phrases" by Roland Burrows, the primary meaning of the word  "modify" is given as "to limit" or "restrict" but it also means  "’to vary"  and may even mean to "extend" or "enlarge".  Thus  in law the word "modify" may just mean "vary", i.e., amend; and when  Art.  370(l)  says that the President  may  apply  the provisions  of  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

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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(l) 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 hereby dismissed with costs. Petition dismissed. 694