Article 35A:Constitution bench led by Chief Justice of India Dhananjaya Y Chandrachud delved into the essence of Article 35A during the proceedings related to the abrogation of Article 370 and the reorganization of Jammu & Kashmir into two Union territories
Chennai, 29 August (City Times): Article 35A has long been a subject of intense debate and discussion in India’s legal and political spheres. Enacted in 1954 as part of the Presidential Order, Article 35A granted special rights and privileges to the permanent residents of the former state of Jammu & Kashmir. However, its implications on the fundamental rights of Indian citizens have come under scrutiny, leading to a critical examination by the Supreme Court.
The Supreme Court’s Insights
In a landmark development, a Constitution bench led by Chief Justice of India Dhananjaya Y Chandrachud delved into the essence of Article 35A during the proceedings related to the abrogation of Article 370 and the reorganization of Jammu & Kashmir into two Union territories. The bench observed that while the 1954 Constitutional Order applied Part III of the Constitution, which encompasses fundamental rights, Article 35A was introduced concurrently. This parallel introduction led to the curtailment of several vital fundamental rights.
Denuding Fundamental Rights
Article 35A, in its application, had a profound impact on three key fundamental rights. The rights that were affected encompassed equality of opportunity in public jobs under Article 16(1), the acquisition of properties under Articles 19(1)(f) and 31, and the right to settle in any part of the country under Article 19(1)(e). The Constitution bench emphasized that these rights, essential for the overall development and freedom of individuals, were compromised due to Article 35A.
An Examination of the Exception
The Constitution bench, consisting of justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai, and Surya Kant, carefully scrutinized the distinct mechanism that Article 35A introduced. It created an exception that targeted specific fundamental rights, creating a disparity between permanent residents and other citizens of India. The bench underscored that the constitutional provisions aimed at safeguarding fundamental rights were not uniformly applicable due to the presence of Article 35A.
Impact on Special Privileges
Article 35A bestowed special rights and privileges upon the residents of Jammu & Kashmir. This included empowering the state’s legislature to frame laws without inviting challenges related to violating equality rights or other provisions of the Indian Constitution. However, the Supreme Court’s observation underlines that this special privilege came at the cost of diluting the broader spectrum of fundamental rights guaranteed to all Indian citizens.
Context of Abrogation
The context of Article 35A’s abrogation cannot be ignored. In August 2019, Article 35A was nullified alongside Article 370, which granted special autonomous status to Jammu & Kashmir. This abrogation marked a significant shift in the legal landscape and brought to the forefront the potential implications of Article 35A on individual rights.
A Historical Perspective
The historical backdrop of Article 35A’s introduction is crucial to understanding its consequences. It was introduced during a period when concerns about demographic changes in Jammu & Kashmir were paramount. While the intention may have been to protect the unique identity of the region, the legal outcomes led to intricate questions about its compatibility with fundamental rights.
Legal Implications of the Stricken Rights
The Supreme Court’s examination of Article 35A’s impact on the three key rights raises critical questions about constitutional validity. The observations highlight the need to balance special privileges with the preservation of essential rights that uphold the principles of equality and freedom enshrined in the Indian Constitution.
The Power of Presidential Approval
The court also highlighted that Article 35A came into existence only after receiving the approval of the Central government. Solicitor General Tushar Mehta acknowledged that rectifying this “mistake” was a necessary step, emphasizing that the present government sought to address historical errors that impacted the development and rights of people in Jammu & Kashmir.
Challenges and Resilience
Senior counsel Kapil Sibal, representing National Conference leader Mohammad Akbar Lone, brought forth historical context by mentioning Jawaharlal Nehru’s concerns about outsiders buying properties in the region. However, the counter-argument emphasized that rectifying past mistakes is essential for the holistic development of the region.
Continuing Judicial Examination
The Constitution bench is actively engaged in comprehensively addressing the complex issues surrounding Article 35A and its consequences. The ongoing hearing reflects the commitment of the Indian judiciary to delve into significant constitutional matters that impact fundamental rights and legal frameworks.
Complexities of historical decisions:
The examination of Article 35A’s implications on fundamental rights underscores the delicate balance between special privileges and the constitutional rights that apply universally to all citizens. The Supreme Court’s observations bring to light the complexities of historical decisions and the enduring commitment to safeguarding individual rights. As the legal proceedings continue, they hold the potential to reshape the understanding of special provisions, fundamental rights, and their interplay within the constitutional framework.