Article 370 Case | Article 35A Took Away Three Fundamental Rights Of Citizens, Says Supreme Court During Hearing[Day 11]

On the eleventh day of the Supreme Court proceedings concerning the abrogation of Article 370 of the Constitution, the Supreme Court orally remarked that Article 35A, which provided special rights and privileges to permanent residents of Jammu and Kashmir (J&K), had the effect of taking away three fundamental rights of Indian citizens, namely, Article 16(1) (equality of opportunity for employment under the State), erstwhile Article 19(1)(f) (right to acquire immovable property, which is now provided under Article 300A) and Article 19(1)(e) (right to reside and settle in any part of India). 

The oral remark was made during arguments placed by the Union Government before the bench comprising CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.  

While making this remark, the CJI pointed out that the Constitution Order of 1954 applied the entirety of Part III of the Indian Constitution (the fundamental rights) to J&K. However, Article 35A created an exception under three areas, namely, employment under state government, acquisition of immovable property, and settlement in the state. In this context, the CJI said–

"Though Part III is applicable, 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), and settlement in the state which is a fundamental right under 19(1)(e)...By enacting Article 35A, your virtually took away the fundamental rights...and granted immunity to any challenge on the ground that it would deprive you of a fundamental right under Article 16...The power of judicial review was taken away."

The Solicitor General Tushar Mehta, appearing for the Union of India, agreed to the same. He pointed out that the year 1927 was set as the cut-off year to define "permanent residents" as per Article 35A. This resulted in a situation where rights are denied to people who have been living in the region for decades.  The SG also highlighted that women lost rights on marrying a non-resident.

He added–

"Something which is impugned here is a constitutional exercise of power which confers fundamental rights, applies the entire constitution, brings J&K people at par with other citizens. It applies all laws which are welfare legislations to J&K which weren't applied earlier. I have the list with me. Till now, people were convinced by those who guide them that this isn't a hindrance in your progress, it's a privilege you fight for. Your lordships have atleast two major political parties defending Article 370, including Article 35A! Now the people have realised what they had lost."

He added that due to the removal of Article 35A, investments had started coming to J&K and due to policing being with the centre, tourism had also started in the region. SG Mehta pointed out that around 16 lakh tourists had visited J&K since the abrogation and new hotels had been opened up in the region, providing employment to a large number of people.

Attorney General for India pointed out that the Presidential Order of 1954 which introduced Article 35A had the effect of creating a new Article in the Constitution. He asked whether the power of the President under the erstwhile Article 370 to apply the Indian Constitution with "modifications and exceptions" to J&K could be exercised to add an altogether new provision to the Constitution.

"Article 35A is not a modification of Article 35. It's a creation of a new article", AG R Venkataramani said.

Various Provisions Of Indian Constitution Remained Inapplicable To J&K Because Of Article 370: SG Mehta

In his arguments today, SG Mehta underlined the effects of Article 370 on the application of the Indian Constitution to J&K. He stated that Article 368 of the Indian Constitution was applied with a provision that any constitutional amendment would not automatically apply to J&K unless it was routed through the process provided under Article 370. This resulted in disparities between the Indian Constitution's provisions that applied to the rest of the country and the provisions that applied within the state. He argued that the following provisions had a disparaged application to J&K–

1. The Constitution of India amended and inserted Article 21A to provide the Right to Education. However, this provision was never applied to J&K till 2019;

2. The 1976 amendment to the Preamble of Indian Constitution was applied with modifications. Thus, the words 'secularism' and 'socialism' were never adopted in J&K. Further, the word "integrity" was also not applied.

3. The Directive Principles of State Policy were not made applicable.

4. Reservations for tribal people was not applied in J&K till 2019. The references to Scheduled Tribes was removed from Article 15(4). 

5. In Article 19, a sub-article (7) was added by way of modification which remained till 1979. As per this, the words "reasonable restrictions" were construed as meaning "such restrictions as the appropriate legislature deems reasonable". In this context, the SG said– "The citizens apply fundamental rights against the State. And now the legislature would decide what are the reasonable restrictions."

6. In the context of preventive detention, Articles 21 and 22 would not apply.

Providing this background, the SG further asserted–

"The effect of Article 370 with Article 367 is that by an administrative act of the President and the Government of the State, any part of the Constitution can be amended, can be altered, can even be destroyed and not applied, and new provisions can even be created in Constitution of India. Article 35A was created, which is a part of Constitution of India, only to be applied to the State of J&K. This 370(1) route and 367 mechanism has been used more than once because 370 permits it. It stopped only after 5 August, 2019. Otherwise, any provision, any Article (could be removed)."

Live updates posted from today's hearing can be read here.