Constitutional Implications of Article 35A: A Perspective on Fundamental Rights and Non-Residents of J&K

In a significant legal pronouncement, Chief Justice of India, DY Chandrachud, has shed light on the constitutional implications surrounding Article 35A of the Indian Constitution. The Chief Justice articulated that Article 35A has resulted in the deprivation of certain fundamental rights for individuals who are not residents of Jammu and Kashmir (J&K). The article, which pertains to special privileges and rights for the residents of the region, has inadvertently led to the exclusion of non-residents from vital aspects such as equality of opportunity, state government employment, and land ownership. Chief Justice Chandrachud’s remarks underscore the constitutional imbalance caused by Article 35A and its divergent impact on residents and non-residents.

Chief Justice DY Chandrachud’s Pertinent Remarks Occur Amidst Ongoing Hearing on Article 370 Revocation

Chief Justice of India, DY Chandrachud, presented his noteworthy insights on the 11th day of the hearing pertaining to petitions challenging the abrogation of Article 370. This article, which conferred special status upon Jammu and Kashmir (J&K), has been a subject of intense scrutiny and legal deliberation. The Chief Justice’s observations, particularly concerning the implications of Article 35A, further enrich the ongoing discourse surrounding the constitutional validity of Article 370’s revocation.

Article 35A: An Overview of its Revocation Alongside Article 370 in August 2019

In August 2019, a consequential development in India’s constitutional landscape transpired with the simultaneous revocation of Article 370 and Article 35A. The latter, Article 35A, had conferred the legislative authority upon the erstwhile state’s legislature to delineate the concept of “permanent residents” and bestow upon them distinctive rights and advantages encompassing aspects such as public employment, immovable property, and settlement.

Chief Justice’s Assertion on the Conflict Between Article 35A and Article 16(1) of the Indian Constitution

Chief Justice DY Chandrachud has underscored a significant legal conflict pertaining to Article 35A of the Indian Constitution and its interaction with Article 16(1) in relation to employment rights. The Chief Justice articulated that Article 35A, despite being eliminated, created a direct contradiction by impinging on the fundamental employment rights guaranteed under Article 16(1). This conflict is rooted in the distinct treatment accorded by Article 35A to employment under the state government, which Article 16(1) explicitly safeguards.

Article 35A’s Impact on Fundamental Rights: Chief Justice’s Perspective

Chief Justice DY Chandrachud has further expounded on the repercussions of Article 35A with regard to key fundamental rights enshrined in the Indian Constitution. The Chief Justice highlighted the erosion of specific fundamental rights—Article 16, Article 19, and the power of judicial review—due to the provisions of Article 35A.

Central to the rationale for the revocation of Jammu and Kashmir’s special status has been the principle of “providing a level playing field.” The Central Government’s assertion hinges on the idea that the special status conferred upon Jammu and Kashmir under Article 370 and Article 35A created a differentiated legal framework that contributed to unequal treatment and opportunities within the country. By eliminating these provisions, the government sought to establish a uniform legal landscape that upholds equality and equal opportunities for all citizens of India.

Solicitor General’s Assertion: Achieving Parity and Welfare through Jammu and Kashmir’s Constitutional Changes

Solicitor General Tushar Mehta, representing the Central Government, has asserted that the decision to alter the constitutional status of Jammu and Kashmir has succeeded in creating a state of parity between its residents and the citizens of the rest of the country. This action has been instrumental in ensuring the application of welfare laws that were hitherto not applicable in the region, thus contributing to a more equitable social and legal framework.

Solicitor General’s Illustration: Implementation of Right to Education in Jammu and Kashmir

Solicitor General Tushar Mehta provided a poignant example to underscore the impact of the constitutional changes on the implementation of welfare laws, specifically citing the case of the Right to Education. The Solicitor General highlighted that prior to the revocation of Article 370 in 2019, any constitutional amendment made to the Indian Constitution did not automatically apply to Jammu and Kashmir. He explained that the invocation of Article 370 was necessary to extend the applicability of such amendments to the region.

The Example of Right to Education

Drawing on the case of the Right to Education, the Solicitor General elucidated that this fundamental right was not effectively implemented in Jammu and Kashmir until the revocation of Article 370. Despite the constitutional amendment that added the Right to Education as a fundamental right for all Indian citizens, this amendment was not automatically applicable in the region due to the unique status of Article 370. Consequently, the residents of Jammu and Kashmir were deprived of the benefits of this fundamental right until the constitutional changes in 2019.

Justice DY Chandrachud referenced Solicitor General Tushar Mehta’s earlier example concerning the amendment of the Preamble to the Indian Constitution. This citation further emphasizes the unique challenges posed by Article 370 with regards to the extension of constitutional amendments, particularly in the context of Jammu and Kashmir. The specific mention of the amendments related to secularism and socialism underscores the nuanced impact that Article 370 had on the region’s constitutional framework.