Supreme Court says Article 35 has violated the fundamental rights of Indians

The Chief Justice of India DY Chandrachud said that Article 35A, which provided special rights to permanent residents of the state of Jammu and Kashmir, took away a bundle of fundamental rights of the people of India. The statement came during the hearing on the matter of abrogation of Article 370 and restructuring of Jammu and Kashmir two Union territories.

According to a constitution bench headed by Chief Justice of India Dhananjaya Y Chandrachud, Article 35A, which was added to the constitution by a presidential order in 1954, took away at least three fundamental rights of the people—

1. Equality of opportunity for all citizens in public jobs under Article 16 (1)
2. Acquisition of properties under Articles 19(1)(f) and 31
3. Right to settle in any part of the country under Article 19(1)(e).

“The 1954 Constitutional Order applied part 3 ( relating to fundamental rights) to Jammu and Kashmir but in the same vein, Article 35A was created which took away three valuable fundamental rights of people by creating exceptions in three areas: opportunity of government employment, acquisition of property and settlement,” remarked the bench, which also comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant.

Article35A, which was also nullified along with the abrogation of Article 370 in August 2019, accorded special rights and privileges to the people of Jammu And Kashmir and boosted its legislature to frame any law without attracting a challenge on grounds of violating the right to equality of people from other states or any other right under the Indian Constitution.

In 2019, Union Home Minister Amit Shah proposed that Article 370 and Article 35A be scrapped. The then-president Ram Nath Kovind issued an order, the Constitution order, 2019, stating that the provisions of the Jammu Indian Constitution will henceforth apply to Jammu and Kashmir, which according to experts brought the northern state ‘at par’ with other states of India.

Solicitor General Tushar Mehta retorted that it was a mistake and that J&K could develop only if there was enough investment made there. “Mistakes of the past should not befall future generations. I am justifying our undoing the mistakes of the past. And this continued till 2019. Please, look at this matter from the point of view of the people in J&K. Till now, people were convinced by those who were supposed to guide them that Article 370 is not a disadvantage but a privilege and that they should keep fighting for it. This is the most unfortunate part. Something, which was an impediment in full realisation of their rights and development, was tutored as a privilege,” he added.

On the eleventh day of the hearing of the case, SG Mehta continued arguing on behalf of the centre and the Jammu and Kashmir administration. He focused on an array of rights that were not available to the J&K residents before the entirety of the Indian Constitution was made applicable to the erstwhile state by virtue of the abrogation.

Towards the end of the hearing, Justice Sanjiv Khanna asked Medta to clarify two aspects: “ Whether converting Ladakh into a Union Territory is downgrading it, as argued by the petitioners; and secondly, under Article 356 (President’s rule), the maximum tenure is 3 years. We have crossed those 3 years, so please clarify this.” The hearing remained inconclusive and will continue on Tuesday as well.

Article 35 A

An article that empowered the Jammu and Kashmir state’s legislature to define “permanent residents” of the state and provide special rights and privileges to them.

Non-permanent residents of the state, even if Indian citizens, were not entitled to these ‘privileges’. Article 35A barred anyone from outside Jammu and Kashmir who is not a permanent resident from getting a state job or owning a property in the state.

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