On August 28, New Delhi, Chief Justice of India (CJI) D.Y. Chandrachud, leading a five-Judge Constitution Bench currently deliberating the petitions challenging the modification of Article 370, made a significant observation today. He noted that Article 35A, while bestowing special privileges upon the permanent residents of Jammu and Kashmir, inadvertently curtailed the fundamental rights of non-residents.
Supreme Court. Photo: File image.
In the ongoing legal proceedings, CJI Chandrachud intervened
during the submission of Solicitor General Tushar Mehta, highlighting the
implications of Article 35A on equal opportunity of state employment, property
acquisition, and settlement rights for non-residents. The special rights granted
to permanent residents were deemed to have come at the cost of depriving others
of their fundamental rights.
Article 35A, introduced in 1954 via a presidential order under Article 370, granted the Jammu & Kashmir Assembly the authority to define 'permanent residents' and issue them Permanent Resident Certificates. These certificates conferred privileges related to employment, property ownership, settlements, and scholarships. However, the paradigm shifted on August 5, 2019, when Article 370 was revised.
The CJI also acknowledged that Article 35A had shielded these special privileges from judicial review. Responding to the CJI's assertion that the present government couldn't dissociate itself from its predecessors, Mehta contended that the August 2019 amendment aimed to rectify past errors. " Our duty is to stop the mistakes of the past from harming present and future generations, he argued." he asserted.
Mehta further revealed that despite residing in J&K for many years, sanitation workers were not entitled to permanent resident status. Addressing historical defense strategies, Mehta noted that the restrictions on outsiders were potentially detrimental, depriving the state of investments.
He emphasized the Union government's claims of a surge in investments and tourism post-August 5, 2019. Mehta asserted that the revised Article 370, challenged in the ongoing petitions, ensured fundamental rights for the state's inhabitants, aligning them with the entire Indian Constitution.
Mehta also pointed out that during the President's rule, the Parliament could operate as the state legislative assembly, exercising the power of the state legislature under Article 356(1)(b) across all states.
The bench, however, disagreed with Mehta's comparison of individual members of parliament's views on Article 370 with those of the entire parliament. Mehta countered by highlighting that the J&K Constituent Assembly didn't function as a legislative body, and the state Constitution didn't serve as a governance document.
In a separate development, the bench raised concerns over the suspension of lecturer Zahoor Ahmad Bhat by the J&K Education Department following his appearance before the bench. Bhat had shared his challenges in teaching Indian constitutional principles post- Article 370's modification. Solicitor General Mehta acknowledged that suspension should not serve as retribution and conceded that the timing of Bhat's suspension was questionable.
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