Article 35A virtually took away fundamental rights: Supreme Court

The Supreme Court on Monday said that Article 35A of the Constitution created an exception under three areas -- employment under state government, acquisition of immovable properties, and settlement in the state -- and virtually took away the fundamental rights of citizens.

Hearing a challenge to the dilution of Article 370 of the Constitution, a five-judge constitution bench led by Chief Justice of India D Y Chandrachud and comprising justices S K Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant, however, asked the Centre if it isn’t downgrading the erstwhile state of Jammu and Kashmir by converting it into a union territory. The court also observed that Article 356 (President’s rule) can only be extended for a period of three years, and asked whether it has exceeded.

Defending the August, 2019 decision, Solicitor General Tushar Mehta submitted that employment is also a right to life. But by Article 35A, despite living for decades together, no person outside Jammu and Kashmir can acquire property, which thereby means no investment, he said.

The bench said, “Article 35A gives special rights to residents and can take away that right as far as non-residents are concerned”.

Mehta said the entire Constitution is now applicable to J&K, and that the Centre's decision to abrogate Article 370 has brought the people people of the erstwhile state at par with the rest of their brothers and sisters, and has also ensured that all welfare legislations are applicable.

Mehta said, “Till now people were convinced by those who were supposed to guide them that this is not a hindrance in your progress. This is your privilege; you fight and nobody can take away Article 370 from you…that is the most unfortunate part. Two major political parties are before the court defending 370, including 35A”.

Highlighting positive development after the Centre's decision, Mehta said 16 lakh tourists have visited the place, new hotels have come up giving employment to a large number of people.

With regard to the court's query on downgrading the status of the previous state, Mehta referred to Home Minister Amit Shah’s statement in the Lok Sabha that the Centre will grant full statehood to J&K at an appropriate time.

On extension of Article 356, Mehta said it would have crossed the three-year limit by now but for the intervention of August 5 and August 6, 2019.