Lok Sabha Question No. 193 (STARRED), answered on 2017-03-15
Subject: Oath of Judges
Ministry: LAW AND JUSTICE
Asked by: AJAY (TENI) MISRA

## GOVERNMENT OF INDIA MINISTRY OF LAW & JUSTICE DEPARTMENT OF JUSTICE

## LOK SABHA STARRED QUESTION NO.193

## TO BE ANSWERED ON WEDNESDAY, the 15 TH  MARCH, 2017

## Oath of Judges

## +*193.SHRI  AJAY MISRA TENI:

Will the Minister of LAW AND JUSTICE be pleased to state :

- (a)  whether  the  judges  in  Jammu  and  Kashmir  do  not  take  oath  to  uphold  the Constitution of India and the judges of the Hon'ble High Court of Jammu and Kashmir are not bound to uphold the Constitution of India and if so, the details thereof;
- (b) whether the provision of Article 368 of the Constitution has been added under the Constitutional order, 1954 wherein it has been provided that no such amendment shall have effect unless applied by order of the President under clause (1) of Article 370 and if so, the details thereof;
- (c)  whether  there  is  a  need  to  amend  the  Constitutional  Order,  1954  in  the  present scenario; and
- (d) if so, the details thereof and if not, the reasons therefor?

## ANSWER MINISTER OF  LAW AND JUSTICE AND ELECTRONICS & INFORMATION TECHNOLOGY

## (SHRI RAVI SHANKAR PRASAD)

- (a) to (d) : A Statement is laid on the Table of the House.

## Statement  referred  in  reply  to  parts  (a)  to  (d)  of  Lok  Sabha  Starred  Question No.193 to be answered on 15.03.2017 regarding 'Oath of Judges'

The Form of oath or affirmation which a judge of the High Court of Jammu and Kashmir has to make and subscribe is given in the Fifth Schedule of the Constitution of Jammu and Kashmir.  The text of the said Form is reproduced below:

- 'I, A.B., having been appointed Chief Justice (or a Judge) of the High Court of Jammu and Kashmir do swear in the name of God / Solemnly affirm that I will bear true faith and allegiance to the Constitution of the state as by law established, (that will uphold the sovereignty and integrity of India,) that  I will  duly and  faithfully  and  to  the  best  of  my ability,  knowledge, and judgment perform the duty of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.'

The Constitution (Application to Jammu and Kashmir) Order, 1954 was issued on 14  May  1954.  Through  this  Constitution  Order,  following  proviso  has  been  added  to Article  368  of  the  Constitution  (Power  of  Parliament  to  amend  the  Constitution  and procedure therefor) in its application to the State of Jammu and Kashmir:

"Provided further that 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".

At  present,  there  is  no  proposal  for  amendment  in  Constitution  (Application  to Jammu and Kashmir) Order, 1954.

***

Name of M.P.:

SHRI AJAY MISRA TENI:

## GOVERNMENT OF INDIA MINISTRY OF LAW AND JUSTICE DEPARTMENT OF JUSTICE

## LOK SABHA STARRED QUESTION NO.193

## TO BE ANSWERED ON WEDNESDAY, THE 15.03.2017

## Oath of Judges

## INDEX

|   Sl. No. | Details of the content                                                                           |
|-----------|--------------------------------------------------------------------------------------------------|
|         1 | Text of Question and Reply                                                                       |
|         2 | Note for Supplementary                                                                           |
|         3 | Annexure I. Bio-Data of the Hon'ble M.P. II. Vacancy Position in Supreme Court and High Courts . |

## Position No.13 th

## 1 LOK SABHA STARRED QUESTION NO.193 TO BE ANSWERED ON 15.03.2017

Oath of Judges

## Note for Supplementary

## APPOINTMENT OF CHIEF JUSTICE OF J&K HIGH COURT

In case of initial appointment of a Chief Justice of a High Court, the provisions of Article 217 of Constitution of India will have to be followed. In the case of Jammu & Kashmir High Court, appointment of Chief Justice shall be made in accordance with section 95 of the Constitution of Jammu &Kashmir. Transfer of Chief Justice from one High Court to another  will  be  governed  by  the  provision  of  Article  222  of  the  Constitution  of  India. Transfer of a Chief Justice to and from Jammu & Kashmir High Court shall be made in accordance with clause (1) of Article 222 of the Constitution of India read with Article 222 (1A) of the Constitution (Application to Jammu & Kashmir) Order, 1954.

The Government has, in consultation with the Chief Justice of India, decided as a matter of policy to appoint the Chief Justice of all High Courts from outside.

The initiation of the proposal for the transfer of a Judge should be made by the Chief Justice of India whose opinion in this regard is determinative. Consent of a Judge for his first or subsequent transfer would not be required. All transfers are to be made in public interest i.e. for promoting better administration of justice throughout the country.

Transfer of Judge to or from Jammu & Kashmir High Court shall be made in accordance with clause (1) of Article 222 of the Constitution of India read with Article 222 (1A) of the Constitution (Application to Jammu & Kashmir) order, 1954. Therefore, when it is proposed to transfer a Judge from or to the Jammu & Kashmir High Court, the Minister of Law and Justice in the Central Government will consult the Governor (Chief Minister) of Jammu & Kashmir for his views before putting up the relevant papers to the Prime Minister for advising the President. In case there is a difference of opinion, the Union  Minister  of  Law  &  Justice  will  consult  the  Chief  Justice  of  India  again  before putting up the papers to the Prime Minister for advising the President on the matter of Transfer.  On  approval  of  the  President,  the  transfer  will  be  announced  in  the  usual manner.

At  present,    Shri  Justice  N.  Vasantha  Kumar  of  Madras  High  Court  is holding the post of Chief Justice of Jammu & Kashmir High Court. Likewise, Shri Justice Mansoor Ahmad Mir, presently functioning as Chief justice of Himachal Pradesh High Court belongs to Jammu & Kashmir High Court.

## 2. VACANCIES OF JUDGES IN JAMMU & KASHMIR HIGH COURT

As  on  10.3.2017,  there  are  8  vacancies  of  Judges  in  Jammu  &  Kashmir  High Court. The Approved Strength, Working Strength and Vacancies of Judges in Jammu & Kashmir High Court is given below.

|   Approved Strength |   Working Strength |   Vacancy |
|---------------------|--------------------|-----------|
|                  17 |                 09 |        08 |

## 3. VACANCIES IN SUPREME COURT AND HIGH COURTS

A Statement indicating the Approved Strength, Working Strength and Vacancies in Supreme Court and High Courts in the Country is at Annexure-II

## 3.1 Supreme Court

The Judge strength of the Supreme Court (including the Chief Justice of India) is 31. As on 10.03.2017, 28 Judges are in position, leaving 3 vacancies of Judges to be filled.

## 3.2 High Courts

Against  the  sanctioned  strength  of  the  High  Court  Judges  of  1079  as  on 10.03.2017, 639 Judges are in position, leaving 440 vacancies of Judges to be filled. During  2016,  250  fresh  recommendations  for  appointment  of  Judges  in  various  High Courts have been received.

## 4. PROPOSAL UNDER CONSIDERATION FOR APPOINTMENT OF JUDGES IN JAMMU & KASHMIR HIGH COURT

The Chief Justice of Jammu & Kashmir High Court vide letter dated 19.2.2016 has recommended the names of 6 Advocates and 3 Judicial Officers for appointment as Judges of that High Court. The Chief Minister of Jammu & Kashmir vide letter dated 30.5.2016  has  raised  objections  to  the  recommendations  made  by  the  Chief  Justice. The Chief Minister of Jammu & Kashmir is of the view that the recommendations may be returned back to the Chief Justice of Jammu  &  Kashmir High court for reconsideration  in  consultation  with  the  State  Government.  The  Governor  vide  letter dated 02.06.2016 has agreed with the views of the State Government. The proposal

has been submitted to the Chief Justice of India on 19.8.2016 for consideration by the Supreme Court Collegium. The response of the Supreme Court Collegium is awaited.

## 5. Procedure  for  appointment  of  Judges  in  the  Supreme  Court  and  High Courts- Position on supplementing MoP

The  Supreme  Court  of  India  vide  its  order  dated  16.10.2015  inter-alia  struck down the  Constitution  (Ninety  Ninth  Amendment  Act)  2014  and  the  National  Judicial Appointments  Commission  Act,  2014  as  unconstitutional  and  void.  Supreme  Court simultaneously  revived  the  'Collegium  System'  for  appointment  of  Judges  to  Higher Judiciary.

The  Supreme  Court  pronounced  its  Order  on  improvement  in  the  'Collegium System' on 16.12.2015 vide this order they have inter alia decided that the

'Government  of  India  may  finalize  the  existing  Memorandum  of  Procedure (MoP)  by  supplementing  it  in  consultation  with  the  Chief  Justice  of  India.  The  Chief Justice  of  India  will  take  a  decision  based  on  the  unanimous  view  of  the  collegium comprising the four senior most puisne Judges of the Supreme Court.

In  view  of  the  importance of the matter, the Government of India constituted a Team of Ministers to deliberate upon on draft MoP for appointment of Chief Justice and Judges  of  the  Supreme  Court  of  India  and  for  appointment  and  transfer  of  Chief Justices and Judges of High Courts.

The changes proposed in the draft MoP's were sent to the Hon'ble Chief Justice of India vide letter dated 22.3.2016. The response of the Chief Justice of India was

received  on  25.5.2016  and  01.07.2016.  The  Supreme  Court  Collegium  has agreed with some of the suggestions of Government of India made in the revised MoP while it has not agreed with some of the suggestions. The views of Government were conveyed to the Chief Justice of India on 03.08.2016.  The effort of the Government is to ensure that only good and meritorious candidates are appointed.  The response of the Hon'ble Chief Justice of India is awaited.

## 6 . Process of appointment of Judges in Supreme Court and High Court resumed at the initiative of Government.

While  the  case  was  being  heard  and  till  the  Judgment  was  pronounced  by Supreme Court, only those Additional Judges whose terms were expiring  were given extensions of three months as per the Supreme Court orders dated 12.05.2015 and

15.07.2015. No other appointments were made. During this period 112 Additional Judges were given extension of tenure.

## 7. APPOINTMENT OF JUDGES MADE IN 2016 AND 2017

As the process of finalizing the MoP is likely to take some time, at the initiative of the  Government  of  India,  the  matter  was  taken  up  with  the  Supreme  Court  and  the process  of  appointment  of  Judges  has  been  resumed.  During  2016,  131  Additional Judges were made Permanent, 4 Judges have been appointed in the Supreme Court and 126 fresh appointment of Judges have been made in various High Courts.

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