A Constitutional disability lurking in the background? Oath of allegiance and the High Court Judges in Jammu & Kashmir

A Constitutional disability lurking in the background? Oath of allegiance and the High Court Judges in Jammu & Kashmir

Bar & Bench

Ravindra Kumar Raizada

With the commencement of the Constitution (Application to Jammu & Kashmir) Order, 2019 and the declaration under Article 370(3) of the Constitution applying the provisions of the Indian Constitution, there remains no shadow of a doubt that the Constitution (Application to Jammu and Kashmir) Order 1954 stood superseded. Along with many others, the provisions of Part VI of the Indian Constitution pertaining to the state judiciary have also been applied to Jammu & Kashmir.

When the 1954 Constitutional Order was applied to Jammu & Kashmir, the President, while applying Part VI of the Indian Constitution, chose to omit the articles pertaining to the High Court constituting part of the basic structure. Naturally, the Constitutional fields under these provisions fell vacant in their application to Jammu & Kashmir.

In a purported attempt to resolve the anomaly emanating from this omission, corresponding provisions for the establishment of the Jammu & Kashmir High Court were provided in the State Constitution. Section 93 of the State Constitution created a High Court. Similarly, Section 95 provided for the appointment of High Court Judges by the President, in consultation, with the Chief Justice of India.

However, before any such appointment is made to the High Court, every judge either transferred from another High Court or newly appointed is required to be administered an oath of allegiance under Section 97 of the State Constitution. Unless such oath is administered to a High Court Judge, he is presumed to not have assumed the office of the judge of a High Court under law.

Surreptitiously enough, this oath of allegiance in the State Constitution was provided in a radically modified form, where the judges of the High Court were administered the oath of allegiance only to the Constitution of the State and not the Constitution of India. While the omission of Article 219 of the Indian Constitution — dealing with oath of allegiance to the Indian Constitution for judges of the High Court, was in itself Constitutionally foul, its omission from the State Constitution was egregious. What most would ignore as a mere technical anomaly might have catastrophic consequences.

Failure to administer the oath of allegiance to the Indian Constitution to High Court Judges prevents them from upholding the Supremacy of the Indian Constitution. Under the oath administered to them under the State Constitution, they were required to uphold and preserve the State Constitution.

The significance of the oath of allegiance administered to a Constitutional functionary under the Indian Constitution was emphasized by Justice Mudholkar in the landmark judgment of Sajjan Singh v. State of Rajasthan. While formulating the theory of basic features of the Constitution, he specifically referred to the prescribed forms of oaths of office or affirmations which require those who subscribe to them to owe true allegiance to the Constitution and further require the judges of the Union and State Judiciary to uphold the Constitution.

In Kesavananda Bharti v. State of Kerala, the same oath of allegiance was invoked by Justices Hegde and Mukherjea, to explain the doctrine of Basic Structure. They observed,

The President of India under Article 60 of the Constitution is required to take an oath before he assumes his office to the effect that he will “to the best of his ability preserve, protect and defend the Constitution”. Somewhat similar oaths have to be taken by the Governors of States, Ministers at the Centre and in the States, Judges of the superior courts and other important functionaries.

When the President of India is compelled to give assent to a Constitutional amendment which might destroy the basic features of the Constitution, can it be said that he is true to his oath to “preserve, protect and defend the Constitution” or does his oath merely mean that he is to defend the amending power of Parliament? Can the amending power of Parliament be considered as the Constitution? The whole scheme and the structure of our Constitution proceeds on the basis that there are certain basic features which are expected to be permanent.”

The Allahabad High Court once had the occasion to discuss the implications of a defective oath administered to the judge of a High Court in Shabbir v. State [AIR 1965 All 97]. While dealing with the question whether the oath taken by a judge of the High Court was correct or not, it was ruled that oath under Article 219 is mandatory. It was held,

if the Article 219 so far as it requires oath to be taken according to the particular form is to be taken to be directory, the main object of providing for oath would be lost.”

It is, therefore, very important to reflect upon the importance of oath of allegiance under our Constitution. “Oath” is administered to a person upon his entering a public office, with the object of placing the person under a corresponding Constitutional or legal obligation to discharge his duties true to the allegiance.

High Courts exercise sovereign powers of the State in our federal system to protect the supremacy of Indian Constitution. With Chapter V of Part VI of the Constitution dealing with the State Judiciary constituting basic structure of the Constitution, it should not be assumed that Article 219 and the oath as prescribed under the Third Schedule of the Indian Constitution is merely a ritual or formality to be performed by the person to be appointed as a judge of the High Court.

It is the oath of allegiance that Constitutionally mandates and inspires the judges concerned to discharge their duties without fear and favour, and to uphold the Constitution of India. In fact, in the landmark ruling in Marbury v. Madison, Chief Justice Marshall of the United States Supreme Court used the oath to propound the doctrine of judicial review and hold that legislative acts yield to Constitutional principles.

These facets of the oath are difficult to undermine and should not be ignored. The fact that this oath is not administered to the judges of the High Court of Jammu & Kashmir is a Constitutional disability to their duty to uphold the supremacy of the Indian Constitution over the State Constitution.

In a situation of conflict between the Indian Constitution and the State Constitution, as the latter still remains unrepealed, it might become an extremely tricky situation for the judges of the High Court. While the judicial acts so far performed by these judges would be saved by the de facto doctrine that confers validity to the acts performed by judges under the color of official title, it would be a Constitutional anomaly to not have the oath administered to the judges of the High Court of Jammu & Kashmir.

The continued failure to have such oath administered to the High Court Judges would not only undermine Rule of Law and supremacy of the Indian Constitution, but would also be an impediment to the effective implementation of the Indian Constitution to the State of Jammu & Kashmir. Therefore, as a matter of expediency, the President of India should immediately notify the Chief Justice of India and the Chief Justice of Jammu & Kashmir to have the oath of allegiance to the Indian Constitution administered to the judges of Jammu & Kashmir High Court.

Ravindra Kumar Raizada is a Senior Advocate at the Supreme Court of India. 

Disclaimer: The views and opinions expressed in this article are those of the author’s and do not necessarily reflect those of Bar & Bench.

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