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Business News/ News / India/  Article 370 case Supreme Court hearing: ‘35A took away fundamental rights’, says CJI Chandrachud

Article 370 case Supreme Court hearing: ‘35A took away fundamental rights’, says CJI Chandrachud

Supreme Court of India continued hearing for the eleventh day, petitions challenging the Centre's decision to repeal special status of Jammu and Kashmir by abrogating Article 370 and Article 35A

The Supreme Court Premium
The Supreme Court

Chief Justice of India DY Chandrachud on Monday said that Article 35A of the Indian Constitution that was scrapped in 2019, ‘took away fundamental rights’. The CJI made the comments during the hearing of petition challenging the abrogation of Jammu and Kashmir's special status. 

A Supreme Court bench comprising Chief Justice of India DY Chandrachud, and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant for the eleventh day on Monday, continued hearing petitions challenging the Centre's decision to repeal the special status of Jammu and Kashmir by diluting Article 370 and Article 35A. 

In 2019, union Home Minister Amit Shah proposed that Article 370 and Article 35A be scrapped. The then President Ram Nath Kovind issued an order, the Constitution (Application to Jammu and Kashmir) Order, 2019, stating that the provisions of the Indian Constitution will henceforth be applicable to Jammu and Kashmir, which according to experts brought the northern state ‘at par’ with other states of India. 

PDP president Mehbooba Mufti was placed under preventive house arrest, along with other PDP leaders in 2019. Lockdown like situation was imposed in Jammu and Kashmir as tension erupted in the state, with residents protesting the decision.

CJI Chandrachud on Article 35A

During the hearing on petitions challenging the abrogation of Article 370, the matter was raised to remove Article 35A. CJI Chandrachud on Monday noted that ‘35A took away three fundamental right’. 

“Employment under State govt is specifically provided under Art 16(1) 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. 

The CJI further added, “When you introduce Article 35A, you take away 3 fundamental rights- Article 16(1), right to acquire immovable property which was then a fundamental right under 19(1)(f), A 31, & settlement in the state which was a fundamental right under 19(1)(e)", as reported by Live Law

“Article 35A which creates exception under three areas - employment under State government, acquisition of immovable properties and settlement in the State" CJI noted. 

During the debate on Article 35A, SG Tushar Mehta argued that the article created an obstruction for the progress of Jammu and Kashmir. He presented before the court that scrapping the article encouraged ‘investment’ in the state, whose only other form of income was tourism and a few cottage industries. 

“It brought them at par with other country men as well. Till now people were convinced that article 370 is not the hindrance to your progress and it cannot be removed. That is what is very sad. Now with no 35A, investments are coming. Now policing with central government. Tourism has started. 16 lakhs tourists have come till now and is generating employment for the mass as well." the SG noted. 

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.



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Published: 28 Aug 2023, 03:23 PM IST
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