By enacting Article 35(A), you virtually took away fundamental rights: CJI

Chief Justice of India D Y Chandrachud on Monday observed that by enacting Article 35A, fundamental rights of equality, liberty to practice profession in any part of the country and others were virtually taken away.

He made the remarks after Solicitor General Tushar Mehta, appearing for the Centre, referred to the contentious provision in the Indian Constitution, saying it gave special rights to only permanent residents of the erstwhile state and was discriminatory.

Without naming the two mainstream political parties of the erstwhile state, the Centre told a five-judge bench headed by CJI Chandrachud that citizens have been misguided that the special provisions for Jammu and Kashmir were "not discrimination but a privilege".

"Even today two political parties are before this court defending Article 370 and 35A," the solicitor general told the top court on the 11th day of hearing the litany of pleas challenging the abrogation of the constitutional provision which bestowed special status to the erstwhile state of J-K.

The solicitor general further submitted that the effect of Article 370 was such that by the administrative act of the President and the state government, any part of the Constitution of India with respect to J-K can be amended, altered or even "destroyed" and new provisions can be created.

He said that after the 42nd amendment, the words "Socialist" and "Secular" were not made applicable to Jammu and Kashmir.

"Even the word "Integrity" is not there. Fundamental duties were not there, which exists in the Indian Constitution.

"The Jammu and Kashmir Constitution provided for a separate provision for permanent residents of J-K in Article 7. It removed references to Scheduled Tribes from Article 15(4). Other Articles 19, 22, 31, 31A and 32 were applied with some modifications…," Mehta said.

On Article 35A, he said it was discriminatory, to say the least.

"Under the provision (A-35A), people like sanitation workers working in the erstwhile state for decades were not given equal rights like that of permanent residents of J-K.

"This discrimination continued till the provision was abrogated in 2019. Non-permanent residents of J-K were not able to purchase lands, could not avail scholarship, employment in the state government," he said, urging the court to look into issues from the "eyes of people".

CJI Chandrachud deciphering Mehta’s submissions said that by enacting Article 35A, "you virtually took away fundamental rights" of equality, liberty to practice profession in any part of the country and even granted immunity from legal challenges and the power of judicial review.

The Solicitor General said, "People were misguided by those - who were supposed to guide them - that this was not a discrimination but a privilege. Even today two political parties are before this court defending Article 370 and 35A." Mehta submitted that the Constitution of Jammu and Kashmir needed to be repealed because it could not co-exist with the Indian constitution.

The apex court also prima facie agreed with the Centre's submission on pleas challenging the abrogation of Article 370 that the Constitution of Jammu and Kashmir is "subordinate" to the Indian Constitution, which is on a higher pedestal.

The bench, however, did not seem to agree with the plea that the Constituent Assembly of the erstwhile state, which was disbanded in 1957, was in reality a legislative assembly.