Published on: 30 August 2023 at 08:30 IST
Chief Justice of India, D Y Chandrachud, conveyed that the enactment of Article 35A resulted in the effective deprivation of fundamental rights, encompassing equality and the liberty to practice a profession across the country.
His statement followed Solicitor General Tushar Mehta’s discourse. Mehta, representing the Centre, referred to the contentious Article 35A in the Indian Constitution, contending that it granted exclusive special rights to permanent residents of the former state of Jammu and Kashmir, thereby propagating discrimination.
Addressing a five-judge bench led by CJI Chandrachud, the Centre, without explicitly naming specific mainstream political parties of the erstwhile state, informed that citizens had been misled into perceiving the special provisions for Jammu and Kashmir as a “privilege” rather than discrimination.
The Solicitor General further accentuated that two political parties were presently defending Article 370 and 35A in court, as part of the ongoing hearings challenging the abrogation of the constitutional provision that accorded special status to the erstwhile state of J-K. Mehta underscored that Article 370’s ramifications included the potential for amending, altering, or even “destroying” any segment of the Indian Constitution pertaining to J-K through administrative actions by the President and the state government, thus enabling the introduction of new provisions.
He noted that terms like “Socialist” and “Secular” were excluded from application in Jammu and Kashmir following the 42nd amendment. Additionally, certain fundamental duties, inherent in the Indian Constitution, were absent.
In reference to Article 35A, Mehta criticized its discriminatory nature. He contended that the provision deprived non-permanent residents of J-K of equal rights. Individuals, such as sanitation workers who had worked in the erstwhile state for decades, were not granted the same rights as permanent residents.
Tushar Mehta noted that this disparity persisted until the provision was revoked in 2019. Consequently, non-permanent residents remained unable to buy land, access scholarships, or secure employment in the state government. Mehta urged the court to consider these issues from the viewpoint of those affected.
Responding to submissions, Chief Justice Chandrachud interpreted that the enactment of Article 35A effectively stripped individuals of fundamental rights. Furthermore, it granted immunity from legal challenges and the power of judicial review.
The Solicitor General highlighted that individuals were misled by those who should have provided guidance, asserting that the discrimination was actually framed as a privilege. He also highlighted that two political parties were currently defending Article 370 and 35A in court.
Mehta contended that the Constitution of Jammu and Kashmir should be repealed since it could not coexist harmoniously with the Indian Constitution.
Prima facie, the Supreme Court appeared to concur with the Centre’s submission that the Constitution of Jammu and Kashmir holds a “subordinate” position to the Indian Constitution, which possesses higher authority. However, the court did not seem to agree with the argument that the erstwhile state’s Constituent Assembly, which disbanded in 1957, indeed functioned as a legislative assembly.