Chief Justice of India Remarks on Article 35A: Taking Away Fundamental Rights

Chief Justice of India DY Chandrachud has made significant observations regarding Article 35A, emphasizing that the provision virtually stripped away fundamental rights of equality and liberty to practice a profession anywhere in the country. These remarks were delivered in response to Solicitor General Tushar Mehta’s reference to the contentious provision in the Indian Constitution.

Special Rights for Permanent Residents

Solicitor General Tushar Mehta, representing the Centre, brought attention to Article 35A, highlighting its provision of special rights exclusively to the permanent residents of the former state of Jammu and Kashmir. Mehta labeled this provision as discriminatory, and the Centre presented its stance without explicitly naming the two major political parties of the former state.

“Even today two political parties are before this court defending Article 370 and 35A,”

Mehta argued that citizens had been misled into perceiving the special provisions for Jammu and Kashmir as a “privilege” rather than discrimination. He further elaborated that Article 370 had a far-reaching effect, allowing the President and state government to modify, alter, or even “destroy” any part of the Indian Constitution concerning Jammu and Kashmir, while introducing new provisions.

Changes in the Jammu and Kashmir Constitution

Mehta highlighted several modifications brought about by the Jammu and Kashmir Constitution. Article 7 introduced a separate provision for permanent residents, while references to Scheduled Tribes were removed from Article 15(4). Other amendments were made to Articles 19, 22, 31, 31A, and 32 with certain adjustments.

Regarding Article 35A, Mehta emphasized its discriminatory nature, illustrating how non-permanent residents were deprived of various rights that permanent residents enjoyed. This discrimination persisted until the provision was abrogated in 2019. Non-permanent residents were barred from purchasing land, accessing scholarships, and securing employment within the state government.

Mehta urged the court to view these issues from the perspective of the affected individuals, such as sanitation workers who had been serving the former state for extended periods.

The Impact of Article 35A

Chief Justice DY Chandrachud interpreted Mehta’s submissions, asserting that Article 35A had the effect of stripping away fundamental rights, including equality, the liberty to pursue a profession anywhere in the country, and even immunity from legal challenges and judicial review. The Solicitor General’s argument that this discrimination was a “privilege” rather than a disparity was met with skepticism.

The significance of this situation was underscored by the fact that even in the present day, two political parties were defending Article 370 and 35A before the court.

Constitutional Conflict

Tushar Mehta contended that the Constitution of Jammu and Kashmir needed to be repealed, as it could not coexist alongside the Indian Constitution. The apex court appeared to concur with the Centre’s stance, asserting that the Constitution of Jammu and Kashmir was “subordinate” to the Indian Constitution, which held a higher status. However, the court did not seem to agree with the argument that the Constituent Assembly of the former state, disbanded in 1957, was equivalent to a legislative assembly.

These developments shed light on the complexities and conflicts surrounding Article 35A, its implications for the residents of Jammu and Kashmir, and the broader constitutional context of the matter.

(With inputs from PTI)

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