Article 35A deprived citizens of many fundamental rights, including employment, equality of opportunity, and the right to acquire property,” Chief Justice Chandrachud remarked.
According to Chief Justice of India DY Chandrachud, those who do not reside in Jammu and Kashmir have been denied some key constitutional rights under Article 35A of the Constitution. “All this this article snatches away from citizens… Because the residents (of Jammu and Kashmir) had special rights, the non-residents were excluded,” he remarked. He also agreed with the Centre that the Indian constitution is a document “on a higher platform than the J&K Constitution.”
His remarks came on the eleventh day of hearings on petitions contesting the repeal of Article 370, which provided Jammu and Kashmir special status.
Article 35A, which was repealed together with Article 370 in August 2019, allowed the legislature of the former state to define “permanent residents” and grant them exceptional rights and privileges in terms of public employment, immovable property, and settlement.
“A direct right under Article 16(1) that was removed was employment with the state government.” Article 16(1) expressly provides for employment with the State Government. So, while Article 16(1) was preserved, Article 35A directly deprived that fundamental right and was immune from challenge on that basis,” the Chief Justice explained.
Article 19 acknowledges the right to live and settle in any section of the Republic. “As a result, 35A effectively removed all three fundamental rights… “The power of judicial review was removed,” he added.
One of the primary arguments for removing Jammu and Kashmir’s special status has been the provision of a level playing field.
Solicitor General Tushar Mehta argued on behalf of the Centre that the measure has brought the people of Jammu and Kashmir on level with the rest of the country. It enacts all welfare legislation that were previously unenacted in Jammu and Kashmir.
He referenced the constitutional amendment that introduced the Right to Education as an example.
“Any modification to the Indian Constitution would not apply to Jammu and Kashmir until Article 370 was invoked… So, until 2019, the Right to Education was never implemented in Jammu and Kashmir since this path was never taken,” he explained.
Mr Mehta’s earlier example of amending the Preamble was noted by Justice Chadrachud. “That’s why the secularism and socialism amendment was never adopted in Jammu and Kashmir,” he explained.