Updated: January 2, 2017 7:24:33 pm
The Delhi High court on Monday asked the Advocate General for Jammu & Kashmir, as well as the Central government to respond on the issue of whether a plea challenging a provision of the Constitution of India that protects J&K from automatic application of all laws and constitutional amendments can be heard by the Delhi High court.
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The bench of chief Justice G Rohini and Justice Sangita DHingra Sehgal noted that it found it “appropriate” to get a response from the Center and the J&K government since the petitioners alleged that the Judges of the J&K High court “do not appear to be under oath to uphold the constitution of India.”
Senior Advocate Ravindra K Raizada, who was appearing for the petitioners, alleged that “Judges in J&K do not take oath to bear true faith and allegiance to the constitution of India as by law established,” and argued that a question regarding a Constitutional principle could therefore not be heard before the J&K HC.
The argument came after the Delhi High court raised the question of why the plea was filed in Delhi and not before the J&K High Court. “The senior advocate would contend that judges in J&K do not appear to be under oath to the Constitution of India,” noted the court in its order while seeking a response from the State and Central government on the issue of the appropriate court where the issue can be heard.
The Petition has challenged the Constitution Order 1954 passed by the President of India 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 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 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 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.
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