NB Viewpoint | Article 35A took away three key rights from Indians: CJI Chandrachud

NewsBharati 29-Aug-2023 11:14:47 AM

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"Article 35A, which granted special rights to permanent residents of the erstwhile state of Jammu & Kashmir, took away a bundle of fundamental rights of the people of India" - CJI Chandrachud

"By Article 35A, you are taking away at least three fundamental rights. You virtually took away rights under Articles 16(1), 19(1)(f) -- as it then existed, and 19(1)(e). While 16(1) was preserved by applying Part III of the Indian Constitution, Article 35A directly took away that right. In fact, all three fundamental rights were essentially taken away by the CO of 1954" Supreme Court

"Mistakes of past should not befall on 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" - Solicitor General Tushar Mehta

New Delhi, Aug 29: "Article 35A, which granted special rights to permanent residents of the erstwhile state of Jammu & Kashmir, took away a bundle of fundamental rights of the people of India", the Supreme Court observed on Monday, while hearing the matter of the abrogation of Article 370 and the restructuring of J& K into 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, denuded people of at least three fundamental rights -

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).

“Employment under State govt is specifically provided under Art 16(1)..so while on the one hand Art 16(1) was preserved, 35A directly took away that fundamental right & granted immunity to any challenge on the ground that it would deprive you of a fundamental right under 16", the CJI said to SG Tushar Mehta.

Wow! Strong comment against article 35A in J&K by CJI Justice Chandrachud, he says that the fundamental rights were taken away by this...

Seculars won't like this!! pic.twitter.com/3eCdkMMXEH
— Mr Sinha (@MrSinha_) August 28, 2023

Appreciating a submission by solicitor general (SG) Tushar Mehta as to how Article 35A created an artificial distinction not only between the permanent residents and other residents of J&K but also with other citizens in the country, the bench lamented that the impugned constitutional provision laid down a completely different mechanism of application of the fundamental rights.

The bench further rued that Article 35A also took away the power of judicial review by disabling the court from scrutinising any law of J&K framed under this constitutional provision.

As the court pointed out that Article 35A came into being only after the Centre approved it, Mehta said that it was a “mistake” that the present government has tried to rectify.

What is Article 35A?

Article 35A of the Indian Constitution was 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.

The state of Jammu and Kashmir defined these privileges to include the ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and availing oneself of other state benefits such as higher education and health care.

Non-permanent residents of the state, even if Indian citizens, were not entitled to these 'privileges'. The 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.