Article 370 Hearing: Article 35A Deprives Non-Residents of J&K Of Constitutional Rights, Says Supreme Court

New Delhi: Article 35A of the Constitution has stripped individuals not residing in Jammu and Kashmir of certain crucial constitutional rights, stated Chief Justice of India DY Chandrachud today.

The right to equal opportunity, employment in the state government, and the ability to purchase 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 noted. He also concurred with the Central government's stance that the Indian constitution holds a "higher platform than the J&K Constitution".

These remarks were made during the 11th day of hearings on the petitions challenging the revocation of Article 370 , which conferred special status upon Jammu and Kashmir.

Article 35A, which was abolished in August 2019 along with Article 370, empowered the legislature of the former state to define "permanent residents" and extend to them specific rights and privileges regarding public employment, property ownership, 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," remarked the Chief Justice.

Likewise, Article 19 acknowledges the right to reside 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 appended.

Establishing a level playing field has been a central argument put forth by the Central government for the abrogation of Jammu and Kashmir's special status. Representing the government's stance, Solicitor General Tushar Mehta asserted that this move has placed the people of Jammu and Kashmir on equal footing with the rest of the nation. It has led to the implementation of welfare laws that were previously not applicable in Jammu and Kashmir.

As an illustrative example, he referenced the constitutional amendment introducing the 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 explained.

Justice Chandrachud recalled Mr. Mehta's prior example of the Preamble amendment. "That's why secularism and socialism amendment was never adopted in Jammu and Kashmir," he remarked.