'Power To Modify Under Article 370(1)(d) Very Wide' : Centre Defends Repeal Of J&K Special Status, Bifurcation Of State [Read Affidavit]

The Central Government has denied the allegations of any procedural anomalies in the abrogation of Article 370 of the Constitution and the subsequent enactment of the Jammu & Kashmir Reorganization Act, 2019. In its affidavit filed in this behalf, the government said that the imposition and the extension of President's Rule in the then State of J&K was wholly legitimate, and is/was never challenged. Further, it argued that the challenge to the Presidential Order which extended all the provisions of the Indian Constitution to the valley was also done in a legal manner, under Article 370(1)(d). The submission has come in response to the petitions that were filed challenging the abrogation of Article 370 of the Constitution by a Presidential Orders passed under Article 370, pursuant to which the Central Government had enacted the J&K Reorganization Act, 2019 to bifurcate the State of Jammu and Kashmir into two successor Union Territories – UT of Jammu and Kashmir, and UT of Ladakh. Earlier, the Supreme Court had set up a Constitution Bench comprising Justices N V Ramana, Sanjay Kishen Kaul, R Subhash Reddy, B R Gavai and Surya Kant to hear all those petitions. The matter is scheduled to come up for hearing on November 14. National Conference leaders Mohammed Akbar Lone and Hasnain Masoodi (who is a former judge of J&K High Court), former IAS officer and J&K politician Shah Faesel, activist Shehla Rashid, Kashmiri lawyer Shakir Shabir, Advocate M L Sharma, are some of the petitioners. The Centre submitted that the President, by virtue of Article 370(3) was empowered to cease the operation of Article 370. The same power was exercised by the President in passing the Constitution (Application to J&K) Order, 2019. The aforementioned Presidential Order was passed on August 5, 2019, to supersede the Constitution (Application to Jammu and Kashmir) Order, 1954. It is noteworthy however, that as per the proviso to Article 370(3), this order of the President required concurrence of the Constituent Assembly of J&K. To resolve this deadlock (as the Constituent Assembly of J&K was dissolved in 1957), the Order stipulated that the words "Constituent Assembly of the State" in Article 370 shall be substituted by the words "Legislative Assembly of the State". The Centre submitted that the power under Article 370(1)(d) was exercised by the President on as many as six occasions when the President's Rule was in force in Jammu & Kashmir and that at no time was any issue/challenge was ever raised against the exercise of this power on the ground that the Legislative Assembly of J&K or the State Government of J&K were not in existence. Further, reliance was placed on Purartlal Lakhanpal v. President of India, (1962) 1 SCR 688, to state that the President had wide scope of power under Article 370(1)(d) to modify the provisions of the Constitution in their application to J&K. It was held therein, "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 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(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." With regards Section 147 of the Constitution of Jammu and Kashmir, which deals with the amendment of that Constitution and places certain fetters on the power of the Legislative Assembly of the State to amend that Constitution, it was submitted that the same could not in any manner affect, dilute or control the power conferred on the President of India under Article 370 of the Indian Constitution. Equally, it could not fetter Parliament in the exercise of its functions under the Constitution of India. "The provisions of the Constitution of India, including Article 370(1)(d) and 370(3) are not...

'Power To Modify Under Article 370(1)(d) Very Wide' : Centre Defends Repeal Of J&K Special Status, Bifurcation Of State [Read Affidavit]

Akshita Saxena

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