Law minister Ravi Shankar Prasad today said the government of India had no plans to force judiciary in the state of Jammu & Kashmir to take their oath of office on the Indian constitution instead of the state constitution.
Prasad was responding to a question on why judges of the Jammu & Kashmir High Court take an oath to uphold the constitution of the state, instead of the Indian constitution, when swearing in.
Prasad said it is because the state has its own constitution that is separate and distinct from the Indian constitution and there were no plans to change the situation.
Like other princely states, Jammu & Kashmir was given the option of calling a constituent assembly and creating its own constitution instead of accepting the Indian constitution when it acceded to India.
However, unlike the other states, Jammu & Kashmir actually made use of the provision and set up a constituent assembly in 1951, which took five years to create a constitution for the state.
Even as the constituent assembly was being convened, a temporary provision, called article 370, was added to the Indian constitution to prevent the Indian government from unilaterally expanding the applicability of the Indian constitution on the hill state without the consent of the local people.
Article 370 envisioned that the constituent assembly will arrive at a clear and final opinion on which additional provisions of the Indian constitution would be applicable to the state.
As a further precaution and to prevent Article 370 itself being amended by the Indian parliament, another order was issued in 1954 that exempted Jammu & Kashmir from being affected by any amendments to the constitution that did not have the concurrence of the constituent assembly of the state. In other words, to amend the article 370 of the Indian constitution, both the Indian parliament and the constituent assembly of Jammu and Kashmir must agree.
However, in 1956, the constituent assembly of Jammu & Kashmir dissolved itself without making any recommendations on expanding the applicability of the Indian constitution beyond the areas specified in the agreement between the Union of India and the Maharaja of Jammu & Kashmir at the time of accession. As a result, the temporary provision became, for all practical purposes, permanent.
Today, if Article 370 has to be amended, the 1954 rule has to be abrogated first. However, said Prasad, the government had no such plans as of now.
“At present, there is no proposal for amendment in Constitution (Application to Jammu and Kashmir) Order, 1954,” said RS Prasad today.
Despite this logjam, India has, over the years, steadily expanded the applicability of several laws to the state of Jammu & Kashmir via various presidential orders.