Article 35A Denies Fundamental Rights in J&K, Observed Chief Justice Of India (Image:www.twitter/sahildahiya)

Article 35A of the Indian Constitution obstructs the fundamental rights of the people in Jammu and Kashmir, observed the Supreme Court on Monday.

“When you introduce Article 35A, you are taking away three fundamental rights”, remarked Chief Justice DY Chandrachud hearing a batch of petitions challenging the abrogation of Article 370 in the context of J&K.

Article 35A empowers the Jammu and Kashmir state”s legislature to define “permanent residents” of the state and provide special rights and privileges to them. The “privileges” includes, ability to purchase land and immovable property, ability to vote and contest elections, seeking government employment and availing oneself of other state benefits such as higher education and health care. Non-permanent residents of the state, even if Indian citizens, were not entitled to these “privileges”.

The top court bench comprised of Chief Justice of India DY Chandrachud, and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant was continuing hearing petitions for the 11th day on Monday. The petitions questions the Centre”s decision to repeal the special status of Jammu and Kashmir by diluting Article 370 and Article 35A.

“Employment under State govt is specifically provided under Art 16(1)..so while on the one hand Art 16(1) was preserved, 35A directly took away that fundamental right & granted immunity to any challenge on the ground that it would deprive you of a fundamental right under 16″, the CJI said to Solicitor General (SG) Tushar Mehta.

“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), A 31, & settlement in the state which was a fundamental right under 19(1)(e)”, the Chief Justice added.

He also mentioned that, “Article 35A which creates exception under three areas – employment under State government, acquisition of immovable properties and settlement in the State”.

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Article 35A created an obstruction for the progress of Jammu and Kashmir, argued the Solicitor General. Scrapping the article encouraged ‘investment’ in the state, whose only other form of income was tourism and a few cottage industries, Mr Mehta added.

“Now with no 35A, investments are coming. Now policing with central government. Tourism has started. 16 lakhs tourists have come till now and is generating employment for the mass as well”, Mr Mehta said.

Article 370 of the constitution gave special status to the northern region of India, Jammu and Kashmir. Jammu and Kashmir was administered by India as a state from 17 November 1952 to 31 October 2019, and Article 370 conferred on it the power to have a separate constitution, a state flag, and autonomy of internal administration.

The central government abrogated Article 370 and bifurcated Jammu and Kashmir into two Union Territories on August 5, 2019. Article 35A was also nullified along with Article 370.

The land has been the subject of a dispute between India, Pakistan, and China since partition in 1947.