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Advocate ML Sharma, who has filed a number of Public Interest Litigation petitions in the Supreme Court, has moved the Court challenging the government’s move to amend the Constitution of India by way of a Presidential. In his petition, Sharma has thus prayed,
“Be pleased to issue a writ of mandamus to Respondent no. 1 (Union of India) or quashing of an impugned notification G.S.R.551(E) dated 05.08.2019 for amending Article 367 of the Constitution of India being illegal, unconstitutional, and void ab initio and ultra vires to the Constitution of India to provide complete justice.”
The Constitution (Application to Jammu & Kashmir) Order, 2019 was passed under Article 370(1) of the Constitution of India. It amends Article 367 which lays down the rules of interpretation of the Constitution of India by inserting a new clause which applies to the State of Jammu & Kashmir.
Article 370 was a temporary Article in the Constitution and the power to abrogate or modify it was conferred with the President under clause (3) of the Article. However, a precondition to the same was concurrence by the Constituent Assembly of the State of Jammu & Kashmir on the decision to abrogate or modify the Article. The Constituent Assembly had, however, ceased to exist as far back as in the 1950s.
The Presidential Order under challenge here, amended Article 367 to replace the reference to Constituent Assembly under Article 370(3) to mean Legislative Assembly.
This Order also paved the way for the introduction of the Jammu & Kashmir Reorganisation Bill, 2019 which aims to bifurcate the State of Jammu and Kashmir into two Union Territories – Union Territory of Jammu & Kashmir, and Union Territory of Ladakh.