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

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 subject to, or subservient to, section 147 of the Constitution of Jammu and Kashmir," the affidavit read. Reliance was placed on SBI v. Santosh Gupta, (2017) 2 SCC 538, wherein it was held that the then Constitution of Jammu and Kashmir was ''subordinate to the Constitution of India".

On the aspect of parliamentary exercise and approval in passing of the J&K Reorganization Act, 2019, the centre said that since the state was under the President's rule at the relevant time, the Parliament was vested with the powers otherwise exercisable by the Legislature of the state. Thereby, in view of Article 356(b), the Parliament was well within its powers to legislate on the impugned Act.

"It is incorrect and misconceived to suggest that any of the applicable Rules of the Rajya Sabha and the Lok Sabha were violated in the course of the passage of the aforementioned resolutions ·on 05.08.2019 and 06.08.2019," the affidavit read.

Stating that the assertion of the Petitioners that Article 3 of the Constitution did not contain the power to create a Union territory was ex-facie untenable, the Centre submitted that the Explanation to Article 3 clearly provided that the references to "State" in Article 3, includes reference to a "Union Territory".

The Centre has maintained its position that the bifurcation of Jammu & Kashmir was done in order to address the grave problems of terrorism, militancy and separatism perpetrating in the valley.

"inimical forces from across the border have exploited the situation. The overall economic development in the State has been severely hindered on account of these factors, and, as a result, the erstwhile State has failed to live up to its full development potential," the affidavit read.

The move was also said to be crucial from the standpoint of economic upliftment of the valley by exploring the potential of tourism in the state and increasing employment opportunities by establishing industries.

"Government of India has initiated a number of development projects/schemes across all regions of Jammu and Kashmir in all the sectors such as Road, Power, Health, Water Resources, Human Resources Development and Tourism etc," the affidavit read.

Considerably, the Act has attained support from the Kahmiri Pandits who moved an intervention application in the matter, stating that the Act will facilitate the return of the exiled Kashmiri Pandits to the valley, by reinstating a safe environment in the region.

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