President cannot modify Article 370 using Article 370: First challenge by Kashmiri mounted in Supreme Court

A Kashmiri lawyer, Shakir Shabir has approached the Supreme Court of India challenging the Presidential Order of August 5 which had paved the way for scrapping of Article 370 of the Constitution..Shabir might be the first Kashmiri to mount a legal challenge to the controversial decision of the Union government..The petitioner has contended that the Presidential order of August 5 which had amended Article 367 is unconstitutional and void ab initio..It is the petitioner’s case that the amendment to Article 367 which resulted in the scrapping of Article 370 could not have been done in the manner in which it was done. It could have been done only by the Parliament..The Presidential Order was issued under Article 370(1)(d). The said Article empowers the President to apply all other Articles except Articles 1, 238 and 370 of the Constitution, to Jammu & Kashmir. Therefore, Article 370 cannot be modified by way of a Presidential order under Article 370(1)(d)..The Presidential Order by which the words of Article 370 were changed could have been achieved only by way of an amendment by the Parliament, Shabir contends..Besides the above, another ground raised by the petitioner is that the Governor of Jammu & Kashmir who has been appointed by the Central government cannot take unilateral decisions without any consultation with the Legislative Assembly of the State. The Governor has to act as per the aid and advice of the Council of Ministers of the State. In the absence of Council of Ministers, the power exercised by the Governor of Jammu & Kashmir in giving concurrence to the Presidential Order is arbitrary and ultra vires the Basic Structure of the Constitution, Shabir submits..The petition alleges that the Presidential Order is in “utter disregard of human rights and rights conferred under Part III of the Constitution”..The petitioner has therefore prayed for quashing the notification of August 5 amending Article 367 as violative of Articles 13, 191(a), 19(1)(b), 19(1)(c), 19(1)(d), 21 and 29 of the Constitution..Earlier, advocate ML Sharma had also challenged the Presidential Order of August 5. The same is yet to come up for hearing.