NEW DELHI: Introduction of Article 35A of the Constitution, which empowered the J&K legislature to define permanent residents, resulted in taking away fundamental rights of non-residents, the Supreme Court remarked on Monday as it continued hearing a challenge to abrogation of Article 370.
Stressing the three fundamental rights of employment, settlement in the state and acquiring immovable property which non-residents were denuded of, CJI DY Chandrachud also said that Article 35A also took away the power of judicial review.
“See the 1954 order. It applied entirety of Part III (fundamental rights) and so Article 16, 19 applied to J&K. Now, you bring in Article 35A which creates an exception under 3 areas: Employment under state govt, acquisition of immovable properties, and settlement in the state. Though Part III is applicable, when you introduce A 35A, you take away 3 fundamental rights- Article 16(1), the right to acquire immovable property which was then a fundamental right under 19(1)(f), Article 31, & settlement in the state
which was a fundamental right under 19(1)(e),” the bench said.
Solicitor General Tushar Mehta, appearing for the Centre, said there is enough material to show that the Constitution of Jammu and Kashmir is subordinate to the Constitution of India and the constituent assembly of Jammu and Kashmir was in reality a legislative assembly making laws.
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.