Chief Justice of India DY
Chandrachud declared today that Article 35A of the Constitution had deprived
individuals not residing in Jammu and Kashmir of vital constitutional rights.
He noted that this article stripped citizens of equality of opportunity, employment
in the state government, and the right to purchase land. "All these rights
were snatched away from citizens due to this article... The exclusion of
non-residents was a result of the special rights enjoyed by the residents of
Jammu and Kashmir," he stated. He also concurred with the assertion by the
Central government that the Indian constitution holds a superior position
compared to the J&K Constitution.
These remarks were made during
the 11th day of hearings for petitions challenging the revocation of Article
370, which granted special status to Jammu and Kashmir.
Article 35A, revoked in August
2019 alongside Article 370, empowered the erstwhile state's legislature to
define "permanent residents" and offer them specific rights and
privileges concerning public employment, property, and settlement.
The Chief Justice emphasized,
"Article 35A directly deprived citizens of the fundamental right under
Article 16(1) to seek employment under the state government." He further
noted that Article 35A infringed upon the right to live and settle in any part
of the country, which is recognized by Article 19. This resulted in the
curtailment of three fundamental rights, along with the power of judicial
review.
The Centre has argued that
scrapping the special status of Jammu and Kashmir has leveled the playing
field. Solicitor General Tushar Mehta, representing the Centre, highlighted
that this action aligned the region with the rest of the country and facilitated
the implementation of previously unenforced welfare laws.
Mehta used the instance of the
Right to Education, citing that this constitutional amendment had not been
applied in Jammu and Kashmir until 2019 due to the specific procedural route
required under Article 370. Justice Chandrachud reinforced this point, noting
that amendments to the Indian Constitution didn't apply to Jammu and Kashmir
until invoked through Article 370.
