Chief Justice Chandrachud: Article 35A Deprived Non-Residents of Key Constitutional Rights in Jammu and Kashmir

Chief Justice of India DY Chandrachud has expressed that Article 35A of the Constitution had deprived non-residents of Jammu and Kashmir of significant constitutional rights. He made this observation during the 11th day of hearings on petitions challenging the revocation of Article 370, which conferred special status on Jammu and Kashmir.

The former state's legislature may define "permanent residents" and provide them exclusive rights to public employment, property, and settlement under Article 35A, which was repealed along with Article 370 in August 2019.

Chief Justice Chandrachud emphasised that Article 35A directly nullified important protections guaranteed by Article 16(1) for state government employees. He also pointed out that Article 19's guarantee of the freedom to move across the country and establish down roots was eroded by Article 35A. The Chief Justice noted that without judicial scrutiny, ordinary people would be harmed.

He also agreed with the government in New Delhi that the Indian Constitution takes precedence over the constitution of Jammu and Kashmir. The Centre has maintained that eliminating the unique status will make life more fair for all citizens.

Solicitor General Tushar Mehta, arguing on behalf of the Centre, stated that the revocation allowed Jammu and Kashmir residents to be on par with the rest of the country. He highlighted that several welfare laws, like the Right to Education, were not previously applicable due to Article 370.

Mehta explained that until Article 370 was invoked, constitutional revisions that applied to the rest of India would not affect Jammu and Kashmir. Because of this provision, for instance, the Right to Education was not enacted in the region until 2019.

The Chief Justice used Mehta's case to highlight the fact that the Preamble modifications addressing secularism and socialism were not implemented in Jammu and Kashmir because of the state's special constitutional features.

The impact on resident rights and the larger legal framework of the nation from the repeal of Article 370 and Article 35A is being discussed at length in the continuing hearings.

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