Wanchoo, J. - (1.) 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 Parliament 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 State 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." 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 a radical alteration in Art. 81 as applied to the State of Jammu and Kashmir and was not justified as a modification under Art. 370 (1). 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.
(2.) Apart from the question whether the petitioner has any fundamental right to maintain this petition under 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 Constitution, - ********** (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 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(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 observations of Kania, C. J., and Mahajan, J., in In re Art. 143 Constitution of India and Delhi Laws Act (1912) etc., (1951) SCR 747. 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. Mahajan, J., also said that the word "modification" used in the context before him did not involve "any material or substantial alteration." The petitioner, therefore, urges that as the Order substituted direct election by nomination there has been 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(1) and the President had exceeded his power under that Article in making this radical alteration.
(3.) Before we consider what the word "modification" means in the context of Art. 370(1) , 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.;