The arguments challenging Article 35/A are more emotional than legal. The first argument is whether the President has the powers to “amend” the provisions of the Indian Constitution in their application to Jammu and Kashmir in a way that can alter the very character of the provision and whether such “amendment” comes within the ambit of “modification” as provided by Article 370?
In its recent judgments including the one that upheld the validity of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (SARFAESI) in the state the Supreme Court while holding that Article 370 had attained a permanent feature (despite the marginal note referring it is a temporary provision) in the Indian Constitution, observed that “modification” included “amendment” in the following words;
“It seems to us that when the Constitution used the word “modification” in Art. 370(1) 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 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 Article 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(1) 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 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”.
The other argument that Article 35/A violates one’s fundamental rights to equality, equal opportunity and equal opportunity in employment and residence don’t hold any water as any order passed under Article 370 by the President can’t be challenged on the grounds that is in contravention of or in contradiction to the other provisions of the Indian Constitution as Article 370 opens with a non obstante/ overriding clause; “Notwithstanding anything contained in this Constitution….”.
So there is little scope for these arguments to succeed and if the Supreme Court overturns its earlier judgments and says that President’s power to “modify” doesn’t include power to “amend” the provisions of the Indian Constitution then it hits another snag. The concurrence by the state was given to the amended Article 35 and that is a statement of fact and there is no way of overturning facts.
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