The law gave the legislature of the former state the authority to define who were considered permanent inhabitants and allowed them certain advantages, such as the right to own land.
According to Chief Justice of India DY Chandrachud, Article 35A of the Constitution denies some important fundamental rights to those who do not reside in Jammu and Kashmir. Equal opportunity, employment in the state government, and the right to purchase land are all things that this article “snatches away from citizens… Because the residents (of Jammu and Kashmir) had special rights, the non-residents were excluded,” he stated. He also concurred with the Centre that the Indian constitution is “on a higher platform than the J&K Constitution” and is a more important document.
The petitions opposing the repeal of Article 370, which gives Jammu and Kashmir its unique status, were being heard on the 11th day when he made his statements.
The Supreme Court declared on Monday that the Center’s 2019 repeal of Article 35A of the Constitution deprived non-residents of Jammu and Kashmir of their constitutional rights, according to Bar and Bench.
The previous state’s legislature had the authority to determine who was considered a permanent resident under Article 35A of the Constitution.
Any people who were present in the state on May 14, 1954, the date the law took effect, and any people who have lived there for 10 years or more at any time after that date are considered to be permanent residents of Jammu and Kashmir, according to Article 35A. Additionally, it had given benefits to citizens who had lived there for a long time, such as the sole right to buy property and work for the government.
“A direct right that was removed under Article 16(1) concerned employment with the state government. Under Article 16(1), employment with the State Government is expressly permitted. Article 16(1) was thus preserved on the one hand, while Article 35A clearly revoked that fundamental right and was shielded from any legal challenges on this basis, according to the Chief Justice.
In a same vein, Article 19 acknowledges the freedom to reside and establish oneself wherever in the nation. “So 35A effectively removed all three of the fundamental rights… The ability for judicial review was eliminated, he continued.
One of the Center’s main justifications for eliminating Jammu and Kashmir’s special status has been the need to provide an equal playing field.
Solicitor General Tushar Mehta argued on behalf of the Centre, saying the action had brought the residents of Jammu and Kashmir on par with the rest of the nation. It puts into effect all the welfare laws that Jammu and Kashmir has not previously done so.
He used the addition of the right to education in the constitutional amendment as an illustration.
Jammu & Kashmir would not be subject to any amendments to the Indian Constitution until Article 370 was invoked, according to the statement. Due to the fact that this path was not taken at all, the Right to Education was never implemented in Jammu and Kashmir until 2019.
The preceding example of the Preamble amendment from Mr. Mehta was used by Justice Chadrachud. He claimed that this was the reason why Jammu and Kashmir never adopted the secularism and socialism amendment.
