Supreme Court Deliberates on Article 35A and Jammu & Kashmir’s Status
Chief Justice of India (CJI) D.Y. Chandrachud, during a recent hearing, remarked that Article 35A, which granted the Jammu and Kashmir Legislature the authority to define the state’s “permanent residents” and bestow upon them special privileges, effectively denied fundamental rights to others. He observed,
Thank you for reading this post, don't forget to subscribe!“Article 35A gave special rights and privileges to permanent residents and virtually took away the rights for non-residents. These rights included the right to equal opportunity of State employment, right to acquire property and the right to settle in Jammu and Kashmir.”
The term ‘permanent residents’ pertains to individuals recognized as hereditary State subjects in 1927, during J&K’s era as a princely state before its 1947 accession to the Indian Dominion. Introduced via the Constitution (Application to Jammu and Kashmir) Order in 1954, Article 35A distinguished permanent residents with exclusive rights like land purchase, state government employment, and other benefits in education and healthcare. Those outside this category, termed ‘non-permanent residents’, were excluded from these advantages.
CJI Chandrachud highlighted that Article 35A also provided immunity from judicial scrutiny for these special privileges. He stated,
“This artificially created class of ‘permanent residents’ alienated people who did not fall within the category. Article 35A further mandated that any law which provides for these special privileges to this class would not violate fundamental rights like Articles 14 (right to equality), 19 (1)(f) and 31 (then right to property), 19(1)(e) (right to settle anywhere in the country) and even Article 21 (right to life and personal liberty) and 22 (protection against preventive detention).”
Solicitor-General Tushar Mehta, representing the Government of India, emphasized that the inclusion of Article 35A was a joint decision by the Government of India and the State government of Jammu and Kashmir. Responding to the CJI’s remarks, Mehta said,
“I have taken instructions and the instructions are that the UT is not a permanent feature and I will make a positive statement the day after tomorrow. Ladakh would remain a UT…but here we are only on Jammu & Kashmir.”
However, CJI Chandrachud responded,
“Mr. Solicitor, you are appearing for the Government of India. You [Government of India] did all this. In constitutional theory, the Government of India is one, perpetual entity.”
Mehta further highlighted that Article 35A had obstructed J&K’s growth and deterred investments. He said,
“Here, in this case, we have two major political parties defending Articles 370 and 35A… But now the people have realised what they had lost all those years… Investments, tourism, etc., have started now. Hotels are being built and 16 lakh tourists have visited Jammu and Kashmir.”
Yet, CJI Chandrachud questioned the Centre’s adherence to federalism principles while abrogating Article 370 and revoking J&K’s full-fledged state status. He pointed out the mandatory requirement for the President to consult the State Legislature before altering a state’s status, as per Article 3’s proviso.
The discussions surrounding Jammu & Kashmir’s status and the implications of Article 35A remain central in India’s legal landscape, with stakeholders keenly observing the Supreme Court’s deliberations.