Article 35A took away key fundamental rights, observes CJI DY Chandrachud

Chief Justice of India DY Chandrachud said that Article 35A of the Indian Constitution that was scrapped in 2019, ‘took away fundamental rights’. The CJI made the comments during the hearing of petition challenging the abrogation of Jammu and Kashmir's special status. 

Chief Justice of India (CJI) DY Chandrachud on Monday made a strong and clear observation that Article 35A (in Jammu and Kashmir) took away key fundamental rights. "The right to own land, employment in the state government, and equality of opportunity are all taken away from people by this clause. The non-residents were excluded because the inhabitants (of Jammu and Kashmir) had unique privileges," he said. 

He also agreed with the Centre that the Indian constitution is a document that is "on a higher platform than the J&K Constitution". His observations came during the 11th day of hearing of the petitions challenging the scrapping of Article 370, which granted Jammu and Kashmir its special status.

Along with Article 370, Article 35A authorised the legislature of the former state to define "permanent residents" and provide them exceptional rights and benefits in terms of public employment, immovable property, and settlement. Both were repealed in August 2019.

"There is a direct right under Article 16(1) which was taken away was employment under the state government. Employment under the State Government is specifically provided under Article 16(1)," the CJI said. He further said, "While on the one hand Article 16(1) was preserved, on the other hand, Article 35A directly took away that fundamental right and was protected from any challenge on this ground."

Similarly, Article 19 recognizes the right to live and settle in any part of the country. Providing a level playing field has been one of Centre's key arguments in scrapping the special status of Jammu and Kashmir.  

Arguing on behalf of the Centre, Solicitor General Tushar Mehta said the move has put the people of Jammu and Kashmir on par with the rest of the country. It implements all those welfare laws which were not implemented earlier in Jammu and Kashmir.