Non-applicability of any constitution amendment in Jammu and Kashmir without a Presidential order under Article 370 of the Constitution, has been challenged in the Delhi High Court which has decided to hear a PIL in this regard next month.
The petition, which challenges the Constitution Order 1954 that adds a proviso to Article 368 of the Constitution, was listed for hearing before a bench of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal, which said it will take up the matter on January 2 after the winter vacation.
The Constitution Order 1954 by the President had added a proviso to Article 368 (power of Parliament to amend the Constitution and procedure therefor), saying “no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of Article 370”.
Article 370 grants special autonomous status to the state and makes it clear that any law, including constitution amendments, shall not be applicable to the state unless applied by an order of the President under this article.
The PIL by advocate Surjeet Singh contends that the Constitution Order was an “encroachment” on the powers of the Parliament to amend the Constitution and apply it to Jammu and Kashmir.
“The impugned proviso added by ‘the Constitution Order 1954’ to the Article 368 is an unconstitutional encroachment on the constituent powers of Parliament to amend the Constitution and apply the same to the state of Jammu and Kashmir as well,” the petition says.
It also says that the powers conferred on Parliament under Article 368 “in its very nature is one that cannot be delegated and the exclusive conferment of amending power on Parliament is one of the basic features of Constitution and cannot be violated directly or indirectly”.
The petitioner has sought quashing of the Constitution Order 1954 to the extent that it adds the proviso to Article 368.