Article 35A Denied J&K Non-Residents Their Key Rights: Supreme Court

Article 35A of the Constitution has deprived people not residing in Jammu and Kashmir of some key constitutional rights, Chief Justice of India DY Chandrachud said today. Equality of opportunity, employment in the state government and right to buy land -- "all this this article snatches away from citizens... Because the residents (of Jammu and Kashmir) had special rights, the non-residents were excluded," he said. He also agreed with the Centre that the Indian constitution is a document that is "on a higher platform than the J&K Constitution".

His observations came during the 11th day of hearing of the petitions challenging the scrapping of Article 370, which granted Jammu and Kashmir its special status.

Article 35A, which was also scrapped in August 2019 along with Article 370, allowed the legislature of the erstwhile state to define "permanent residents" and provide them with special rights and privileges in terms of public employment, immovable property and settlement.

"There is a direct right under Article 16(1) which was taken away was employment under the state government. Employment under the State Government is specifically provided under Article 16(1). So while on the one hand Article 16(1) was preserved, on the other hand, Article 35A directly took away that fundamental right and was protected from any challenge on this ground," the Chief Justice said.

Similarly, Article 19 recognizes the right to live and settle in any part of the country. "Hence all the three fundamental rights were essentially taken away by 35A... Power of judicial review was taken away," he added.

Providing a level playing field has been one of Centre's key arguments in scrapping the special status of Jammu and Kashmir.  
Arguing on behalf of the Centre, Solicitor General Tushar Mehta said the move has put the people of Jammu and Kashmir on par with the rest of the country. It implements all those welfare laws which were not implemented earlier in Jammu and Kashmir.

As example, he cited the constitutional amendment that added Right to Education.

"Any amendment made to the Indian Constitution would not apply to Jammu and Kashmir until it was invoked through Article 370… So Right to Education was never implemented in Jammu and Kashmir till 2019, because this route was not followed at all," he said.

Justice Chadrachud cited Mr Mehta's earlier example of the amendment of the Preamble. "That's why secularism and socialism amendment was never adopted in Jammu and Kashmir," he said.