The Supreme Court stated that Article 35A deprived non-residents in J&K of essential rights.

During the 11th day of hearings concerning the challenge to the revocation of Article 370, Chief Justice of India DY Chandrachud highlighted that Article 35A of the Constitution stripped individuals not residing in Jammu and Kashmir of essential constitutional rights. These rights included equality of opportunity, the ability to be employed within the state government, and the right to purchase land.

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Chief Justice Chandrachud pointed out that this article specifically deprived citizens of these rights due to the special privileges afforded to residents of Jammu and Kashmir, which led to the exclusion of non-residents from these benefits. He also concurred with the viewpoint presented by the Centre that the Indian Constitution held a higher status than the J&K Constitution.

Article 35A, which was annulled in August 2019 along with Article 370, granted the legislature of the former state the authority to define “permanent residents” and offer them distinct rights and advantages with regards to public employment, property ownership, and settlement.

Chief Justice Chandrachud emphasized that Article 35A directly impinged on fundamental rights. For instance, Article 16(1) granted the right to employment under the state government, but this right was nullified by Article 35A. He underscored that while Article 16(1) was preserved, Article 35A undermined this fundamental right and was immune to legal challenge on this basis. Likewise, Article 19 recognized the right to live and settle in any part of the country, but this right was essentially negated by Article 35A. The Chief Justice also pointed out that the power of judicial review was curtailed by this article.

One of the primary arguments put forth by the Centre in scrapping Jammu and Kashmir’s special status was the aim to establish an equitable playing field. Solicitor General Tushar Mehta, representing the Centre, stated that this step brought the people of Jammu and Kashmir in line with the rest of the nation, enabling the application of welfare laws that were previously not enforced in the region. As an example, he highlighted the introduction of the Right to Education through constitutional amendment, which had not been extended to Jammu and Kashmir prior to 2019 due to the necessity of invoking Article 370 for its implementation.

Justice Chadrachud supported Mehta’s argument, referencing the instance of the amendment to the Preamble. He explained that certain amendments, such as those related to secularism and socialism, were never adopted in Jammu and Kashmir precisely because of this constitutional limitation.

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