Former J&K HC Judge Who Held Article 370 Is Permanent To Contest Lok Sabha Polls

PTI reports that Nationalist Conference has decided to field the retired judge from Anantnag Lok Sabha Constituency.

Justice Masoodi, who did his Master's in Law from Harvard University, started his judicial career as a Munsiff. He was later elevated as Additional Judge of High Court of Jammu and Kashmir in 2009. He retired on 1^st January 2016.

A few months before his retirement, the bench headed by him, also comprising of Justice Janak Raj Kotwal delivered an important judgment pertaining to Article 370 of the Constitution of India.

It was observed in the judgment that the Article 370 though titled as "Temporary Provision" and included in Para XXI titled "Temporary, Transitional and Special Provisions" has assumed place of permanence in the Constitution. It is beyond amendment, repeal or abrogation, inasmuch as Constituent Assembly of the State before its dissolution did not recommend its amendment or repeal, the judge had observed.

The issue before the Jammu Bench in Ashok Kumar vs. State of J&K was whether in light of the Apex Court judgment in Indra Sawhney v. Union of India, which prohibits reservation in matters of promotion, provisions of the Jammu & Kashmir Reservation Act, 2004 and the rules framed thereunder can be enforced in the absence of the applicability of Art. 16 (4A) of the Constitution of India to the State of J&K. The bench had said:

"The State of Jammu and Kashmir while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other Princely States that signed Instrument of Accession with Dominion of India. The State continues to enjoy special status to the extent of limited sovereignty retained by the State. The limited sovereignty or special status stands guaranteed under Article 370 of the Constitution – only provision of the Constitution that applied to the State ex-propriogorige or on its own. The only other Constitutional provision made applicable by Article 370 of the Constitution to the State is Article 1. No other provision of the Constitution as provided under Article 370 (1), would be applicable to the State except, by Presidential order in consultation with the State in case the provision is akin to subjects delineated in Instrument of Accession and with concurrence of the State, in case it does not fall within ambit of Instrument of Accession."

Answering the reference, the bench held that Clause (4A) of Article 16 of the Constitution is not applicable to the State and the constitutionality of Section 6 of Reservation Act and Rules 9, 10 and 34 of Reservation Rules is to be tested on the touchstone of unamended Article 16. It finally held these provisions are ultra-vires Article 16 Constitution of India.

Pic courtesy: Greatkashmir.com

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