New Delhi: The Delhi High Court on Monday heard the matter of whether high court judges in Jammu and Kashmir take oath owing allegiance to the Constitution of India.
A bench of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal said they would like to get a response from the centre and the J&K government, and added that prime facie it would be “appropriate for the petitioner to approach the Jammu and Kashmir High Court in view of the doctrine of forum convenience”.
The direction by the bench came after the lawyer appearing for the petitioner, advocate Surjeet Singh, said that high court judges in Jammu and Kashmir do not “appear to” be under obligation to uphold the Indian Constitution.
“The counsel for the 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,” said the bench, which posted the matter for further hearing on February 13.
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 constitutional amendments, shall not be applicable to the state unless applied by an order of the President under this article.
The petition 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 petitioner has sought quashing of the Constitution Order 1954 to the extent that it adds the proviso to Article 368.