Article 35A and Its Impact on Fundamental Rights: Insights from Supreme Court Proceedings
In the ongoing Supreme Court hearings concerning the abrogation of Article 370, the apex court made a pivotal observation regarding Article 35A. The Constitution Bench, led by Chief Justice of India (CJI) DY Chandrachud and comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, remarked that Article 35A, which conferred special rights to the permanent residents of Jammu and Kashmir (J&K), effectively curtailed three fundamental rights of Indian citizens.
The rights in question are:
- Article 16(1) – Equality of opportunity for employment under the State.
- Erstwhile Article 19(1)(f) (now under Article 300A) – Right to acquire immovable property.
- Article 19(1)(e) – Right to reside and settle in any part of India.
CJI Chandrachud elucidated,
“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, you 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.“
Solicitor General (SG) Tushar Mehta, representing the Union of India, concurred with the court’s observation. He emphasized the historical context, noting that 1927 was set as the defining year for “permanent residents” under Article 35A. This classification led to the denial of rights to individuals who had resided in the region for decades. Furthermore, women faced the loss of these rights upon 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 at least two major political parties defending Article 370, including Article 35A! Now the people have realized what they had lost.”
SG Mehta further highlighted the positive changes post the removal of Article 35A, stating,
“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.”
He cited that approximately 16 lakh tourists had visited J&K since the abrogation, leading to the opening of new hotels and generating employment opportunities.
The Attorney General for India, R Venkataramani, raised a pertinent point about the Presidential Order of 1954, which introduced Article 35A. He questioned,
“Article 35A is not a modification of Article 35. It’s a creation of a new article.”
SG Mehta further elaborated on the disparities created by Article 370 in the application of the Indian Constitution to J&K. He highlighted several provisions of the Indian Constitution that remained inapplicable to J&K due to Article 370 and 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).“
In response to the arguments, the court sought clarity on the constitutional necessity of certain provisions and the role of the parliament during the President’s rule. The CJI then asked,
“If the powers of legislature of state under 356B can be exercised by parliament then what is the Constitutional necessity of suspending the proviso to Article 3?”
The hearings have garnered significant attention, shedding light on the intricate interplay between constitutional provisions and their real-world implications. As the proceedings continue, the nation watches closely, awaiting further insights and eventual decisions from the highest court of the land.
