Justice Hasnain Massodi, a former Judge of Jammu and Kashmir High Court, who had delivered a judgment stating that Article 370 is a permanent feature in the Constitution, is now all set to contest in upcoming Lok Sabha elections, reports Live Law.
Reportedly, National Conference led by Omar Abdullah has decided to field the retired judge Justice Hasnain Massodi from Anantnag Lok Sabha Constituency. Massodi, just months before his retirement, had delivered a controversial judgment regarding the status of Article 370 of the Constitution of India.
A bench headed by Massodi along with Justice Janak Raj Kotwal had observed that Article 370, which is included Part XXI in the constitution titled “Temporary, Transitional and Special Provisions” has assumed a place of permanence in the Constitution. The bench had held that the Article 370 is beyond amendment, repeal or abrogation, as Constituent Assembly of the State before its dissolution did not recommend its amendment or repeal.
Article 370, a ‘temporary’ provision distinguishes the state of Jammu and Kashmir from other states of the country by providing special autonomy in the functioning of the state. Most of the constitutional provisions which are applicable for other states are not applicable to Jammu and Kashmir.
While hearing a petition in Ashok Kumar vs. the State of J&K case pertaining to the applicability of reservation in the state of Jammu and Kashmir under Article 16 of the constitution, the bench had 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.
Justice Massodi had observed that “The State of Jammu and Kashmir while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like the 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. 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,” the bench had observed.
However, Article 35A and Article 370 are two controversial provisions present in the constitution, providing certain benefits to the people residing in the state. The two provisions- Art 35A and 370 are very much against the idea of equality that has been promised under the Article 14 of the constitution as these two controversial provisions bars people outside the state to exert their rights in the state of Jammu and Kashmir. Since fundamental Rights enjoys precedence over ordinary rights under the Indian Constitution, both Article 35A and 370 are subservient to Article 14, thus making both provisions null and void.
Article 35A is a provision inserted into the Indian Constitution in 1954 by the then Prime Minister Nehru, which provides the Jammu and Kashmir legislature to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare.
