In the ongoing Article 370 Supreme Court hearing,
Chief Justice of India D Y Chandrachud made observations regarding Article 35A, highlighting that it led to the virtual removal of fundamental rights such as equality and the freedom to practice a profession anywhere in the country. These remarks were made after Solicitor General Tushar Mehta, representing the Indian government, referred to Article 35A of the Indian Constitution, which granted special rights exclusively to permanent residents of the erstwhile state of Jammu and Kashmir.
Without explicitly naming the two main political parties of the former state, the government informed a five-judge bench led by Chief Justice Chandrachud that citizens have been misled into considering the special provisions for Jammu and Kashmir as “privilege” rather than “discrimination.”
During the hearing, the solicitor general stated that Article 370 had significant implications. Through administrative actions of the President and the state government, parts of the Indian Constitution relating to Jammu and Kashmir could be amended, altered, or even invalidated, enabling the creation of new provisions. He noted that certain terms like “Socialist” and “Secular” were not applicable to Jammu and Kashmir after the 42nd amendment. Furthermore, terms like “Integrity” and “Fundamental duties,” which exist in the Indian Constitution, were also absent in the Jammu and Kashmir Constitution.
Mehta pointed out that the Jammu and Kashmir Constitution introduced a separate provision in Article 7 for permanent residents of the region. Additionally, references to Scheduled Tribes were removed from Article 15(4), while other Articles such as 19, 22, 31, 31A, and 32 were applied with some modifications.
Chief Justice of India (CJI) DY Chandrachud made a strong observation that Article 35A, which pertained to Jammu and Kashmir, essentially deprived individuals of fundamental rights. The CJI’s comment came in response to Solicitor General Tushar Mehta, who was representing the Indian government. Mehta had referred to Article 35A, stating that it provided special rights exclusively to permanent residents of the former state and was discriminatory in nature.
The observation was made during the crucial hearing in the Supreme Court, which marked the 11th day of arguments in a series of pleas challenging the abrogation of Article 370. Article 370 granted special status to the erstwhile state of Jammu and Kashmir.
The Centre, without naming the two prominent political parties of the former state, contended that citizens had been misled into viewing the special provisions for Jammu and Kashmir as a “privilege” rather than “discrimination.”
Mehta further argued that Article 370 had the effect of allowing the administrative acts of the President and the state government to amend, alter, or even “destroy” any part of the Indian Constitution concerning Jammu and Kashmir. He mentioned that after the 42nd amendment, terms such as “Socialist” and “Secular” did not apply to Jammu and Kashmir. The terms “Integrity” and “Fundamental duties,” present in the Indian Constitution, were also absent in the Jammu and Kashmir Constitution.
Regarding Article 35A, Mehta emphasized its discriminatory nature. He mentioned that this provision denied equal rights to individuals like sanitation workers who had worked in the former state for decades, in contrast to the rights granted to permanent residents of Jammu and Kashmir. Mehta stated that this discrimination continued until Article 35A was abrogated in 2019. Non-permanent residents of Jammu and Kashmir were unable to purchase land, access scholarships, or secure employment in the state government.
CJI Chandrachud interpreted Mehta’s arguments and stated that by enacting Article 35A, fundamental rights such as equality, liberty to practice a profession anywhere in the country, immunity from legal challenges, and judicial review were essentially taken away.
The Solicitor General asserted that people had been misguided by those who were expected to guide them, into believing that this was not discrimination but a privilege. He also mentioned that even today, two political parties were defending Article 370 and 35A before the court.
Additionally, Mehta submitted that the Constitution of Jammu and Kashmir needed to be repealed as it could not coexist with the Indian Constitution. The Supreme Court seemed to agree with the Centre’s argument that the Constitution of Jammu and Kashmir was “subordinate” to the Indian Constitution, which held a higher position. However, the bench did not seem to concur with the plea that the Constituent Assembly of the former state, disbanded in 1957, was in reality a legislative assembly.
