Article 370 case: Scrapped Article 35A took away 3 fundamental rights of non-residents of J&K, says Supreme Court

Article 35A of the Constitution, which came to be repealed in 2019, was one which effectively took away the fundamental rights of non-residents of Jammu and Kashmir (J&K), the Supreme Court orally observed on Monday [In Re: Article 370 of the Constitution]..A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant said that Article 35A conferred special rights on the people of Jammu and Kashmir and in the process curtailed three fundamental rights of persons domiciled in the rest of the India."Equality in government employment under Article 16(1), right to acquire immovable property under Article 19 (1)(f) and Article 31 and right settlement in the State which was a fundamental right under 19(1)(e). Thus, by enacting article 35A you virtually took away the fundamental rights. There is direct right under Article 16(1). What was taken away was employment under the State government, so there was special rights for residents and (that was) taken away for non-residents. While 16(1) was preserved, 35A took away that fundamental right. So all the three fundamental rights and power of judicial review was essentially taken away by Article 35A," the CJI said.The Court was hearing arguments of Solicitor General (SG) Tushar Mehta for the Union government.Article 35A, which was abrogated in 2019 along with Article 370, empowered the Jammu and Kashmir (J&K) legislature to define 'permanent residents' of the State and provide special rights and privileges to them in terms of public employment, immovable property and settlement.The SG argued that Article 35A was created in the Constitution of India only to apply to J&K."So the route in Articles 367 and 368 has been used earlier as well. Article 370 has continuously evolved depending on the need of the situation. A mistake of the past cannot have an affect on the future generations; we have undone the past mistake in 2019."The SG then contended that with the removal of Article 35A (along with the abrogation of Article 370), investment and tourism have received a boost in the region..Today was the eleventh day of the hearing in the petitions challenging the Central government's move in August 2019 that resulted in the revocation of the special status of Jammu and Kashmir (J&K). The erstwhile State was bifurcated into two Union Territories.The Supreme Court today also asked the Central government to ascertain the reason behind suspension of a senior lecturer of the School Education Department in J&K, Dr. Zahoor Ahmad Bhat who had appeared in the matter for the petitioners..During the hearing today, the CJI asked the Central government about replacing the word 'constituent assembly' with 'state legislature' by way of amendment to Article 368 through a presidential order which enabled the abrogation of Article 370."The point you have tried to make that constituent assembly of J&K was legislative assembly and not constituent assembly, that may not be correct since Article 238 brought subjects under the fold of the State only after constituent assembly approval. So calling it merely a legislative assembly may not be correct.".The SG replied saying that Article 370 was a self-extinguishing legislation."Whenever a word in Article 370 became otiose, it was replaced. like Sadr-e -Riyasat was replaced by Governor. Article 370 is a self-extinguishing provision. During subsequent parliamentary proceedings also, Article 370 was treated as a temporary one," he said.SG Mehta added that earlier, the Jammu & Kashmir (and Ladakh) High Court judges would take their oath on the Constitution of J&K, though they were discharging duties under the Constitution of India..SG Mehta then argued that all 4 Constitutional orders regarding abrogation were passed during President's rule, which has gone on without there being any legal challenge to the same. Sibal responded to the same by saying, "So if a certain thing is not challenged in a PIL then the constitutionality of it cannot be adjudged?" What is this?""When you say Governor should not have dissolved then it becomes a political argument. And how you can pre-empt my submission like this," the SG asked.He then refuted allegations of a sinister design behind the abrogation of Article 370."Whenever presidential proclamation is issued, proviso to Article 356 is suspended in each and every case. We have studied all such proclamations in all States, not just Jammu and Kashmir. It is being said that as if we did something surreptitiously, as if we had some sinister plan! Proviso to Article 3 is always suspended and it has nothing to do with committing fraud on the Constitution of India. A lot of things happened, Pulwama happened in early 2019, and it was done thinking a lot of things in mind such as as sovereignty, national security issues etc in mind."The SG stressed that whenever there is President's rule, the parliament exercises the role of the State legislature.The CJI then asked,"If the powers of legislature of state under 356B can be exercised by parliament then what is the Constitutional necessity of suspending the proviso to Article 3?" "We are dealing with a case where legislature is dissolved. What if it is kept in suspended animation, it can meet and pass a law." Justice Khanna then pointed out that as a matter of convention, whenever a State government is dissolved, the proviso to Article 3 is also suspended..Justice Khanna also pointed out that Article 356 has a cap of three years after being evoked in a State, a deadline which has exceeded with respect to J&K. The hearing will continue tomorrow. Read our coverage of Day 1 of the hearing here and here.Read our coverage of Day 2 of the hearing here and here.Read our coverage of Day 3 of the hearing here and here.Read our coverage of Day 4 of the hearing here and here.Read our coverage of Day 5 of the hearing here and here.Read our coverage of Day 6 of the hearing here and here.Read our coverage of Day 7 of the hearing here and here.Read our coverage of Day 8 of the hearing here and here.Read our coverage of Day 9 of the hearing here and here.Read our coverage of Day 10 of the hearing here and here..[Follow our live-coverage of today's hearing]