Challenge To 1954 Presidential Order:Delhi HC Adjourns Plea Till March 13

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Srinagar—The Delhi High Court has adjourned till 13 March next year a petition, challenging the 1954 Presidential Order that prevents applicability of any amendment in the Constitution of India to Jammu and Kashmir. 

A division bench comprising acting Chief Justice Gita Mittal and Justice C Hari Shankar passed the orders after an adjournment slip was circulated with the consent of both sides.

On previous date of hearing, the bench had asked the petitioner—Surjeet Singh—to file written submission on maintainability of the petition.   

The petitioner has challenged the 1954 Order that adds a proviso to Article 368 of the Constitution. The added proviso says: “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.”

On 2 January this year, the high court had prima facie found that Singh’s petition “does not deserve to be entertained on the ground of ‘forum nonconveniens (lack of jurisdiction).”

However, the Senior Counsel appearing for Singh contend that the petition, seeking enforcement of the Constitution of India, can only be filed in the High Courts other than J&K High Court since its judges are not under oath to uphold the Constitution of India. To substantiate his contention, the Senior Counsel stated that a Judge in Jammu and Kashmir High Court does not take oath to bear true faith and allegiance to the Constitution of India as by law established and to uphold the Constitution.

State’s additional standing counsel GM Kawoosa however contended that the judges of J&K High Court “uphold the Constitution of India as they take oath under Constitution of India as well as Constitution of J&K.”

The state government also contends that the Supreme Court has settled the issue through constitutional judgments delivered by the Supreme Court in cases titled Pooranlal Lakhanpal Vs President of India and Sampant Prakash Vs State of J&K and others. Hence the Delhi High Court has no jurisdiction to entertain the petition, the state government pleaded. 

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