Article 35A took away three fundamental rights of Indians: Supreme Court

Article 35A of the Indian Constitution, nullified in August 2019 when Article 370 was abrogated, took away three fundamental rights of the Indian people, the Supreme Court has said in an oral observation.

On the 11th day of the court proceedings regarding Article 370 on Monday (August 28), a Constitution Bench headed by Chief Justice DY Chandrachud made the observation.

While Article 35A granted special rights to permanent residents of the erstwhile state of Jammu and Kashmir, it snatched at least three fundamental rights of the people of India, the apex court observed.

The Bench was hearing arguments in a case on the abrogation of Article 370, as well as the restructuring of the former Jammu and Kashmir state into two Union Territories.

Fundamental rights

The judge said Article 35A, added to the Constitution by a Presidential Order of 1954, took away equality of opportunity for all citizens in public jobs under Article 16(1); acquisition of properties under Articles 19(1)(f) and 31; and right to settle in any part of the country under Article 19(1)(e).

“The 1954 Constitutional Order applied Part III (relating to fundamental rights) to Jammu and Kashmir but in the same vein Article 35A was created which took away three valuable fundamental rights of people by creating exception in three areas: opportunity of government employment, acquisition of property and settlement,” remarked the bench, which also included justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant.

Article 35A gave special rights and privileges to the residents of Jammu and Kashmir and empowered its legislature to frame any law without attracting a challenge on grounds of violating right to equality of people from other states or any other right under the Indian Constitution.

Article 35A was added to the Constitution by exercise of power under Article 370.

Mehta’s arguments

Solicitor General Tushar Mehta underlined how Article 35A created an artificial distinction not only between the permanent and other residents of Jammu and Kashmir but also with other citizens in the country.

Appreciating this, the Supreme Court Bench lamented that the impugned constitutional provision laid down a completely different mechanism of application of the fundamental rights.

The Bench also observed that Article 35A took away the power of judicial review by disabling the court from scrutinising any law of Jammu and Kashmir framed under this constitutional provision.

Mehta argued that Article 35A was a “mistake” the present government had tried to rectify.

Senior counsel Kapil Sibal, who appeared for National Conference leader Mohammad Akbar Lone, said that then prime minister Jawaharlal Nehru was strictly against allowing outsiders to buy immovable properties in Jammu and Kashmir since he feared this could destroy the Valley.

“35A had to go”

Calling that a mistake, Mehta said Jammu and Kashmir could develop only if there was enough investment.

“Mistakes of the 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 Jammu and Kashmir.

“Till now, people were convinced by those who were supposed to guide them that Article 370 is not a disadvantage but a privilege and that they should keep fighting for it. This is the most unfortunate part.

“Something, which was an impediment in full realisation of their rights and development, was tutored as a privilege,” he added.

Among the matters being heard by the Constitution bench against ending the special status of Jammu and Kashmir are two petitions, filed in 2014, challenging the validity of Article 35A.

Counter-argument

In its counter affidavit filed in 2015, the then Jammu and Kashmir government said Article 35A’s enactment and cannot be challenged after six decades.

Mehta also pointed out that several rights that were not available to the people of Jammu and Kashmir before the Indian Constitution in its entirety was made applicable to the erstwhile state.

The apex court is hearing petitions filed by National Conference leaders, Kashmiris, former bureaucrats and various organisations that have challenged the abrogation of Article 370.

Day-to-day hearing on the case began on August 2.

(With agency inputs)