Does the non-applicability of any Constitutional amendment in Jammu and Kashmir without a Presidential order under Article 370 of Constitution make it non-obligatory for judges there to uphold Indian Constitution? This was the question before the Delhi High Court today. However, without going into its merit, the high court said it would like to get a response from the Centre and the state whether the High Court judges in Jammu and Kashmir takes oath owing allegiance to the Constitution of India.
The direction by the bench of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal came after the lawyer appearing for the petitioner alleged that high court judges in Jammu and Kashmir do not "appear to" be under obligation to uphold the Indian Constitution.
The bench said that prime facie it was of the view that it would be "appropriate for the petitioner to approach the Jammu and Kashmir High Court in view of the doctrine of forum convenience".
"The counsel for petitioner says that judges of the Jammu and Kashmir High Court do not appear to be taking oath owing allegiance to uphold the Constitution of India. We would like to hear the respondents (Centre and J&K) on this issue," the bench, which posted the matter for further hearing on February 13, said.
The petition by advocate Surjeet Singh challenges the Constitution Order 1954 that adds a proviso to Article 368 of the Constitution.
The Constitution Order 1954 by the President had added a proviso to Article 368 (power of Parliament to amend the Constitution and procedure thereof), 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 contends that the Constitution Order was an "encroachment" on the powers of the Parliament to amend the Constitution and to 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 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.