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Friday, September 22, 2023

CJI DY Chandrachud: Article 35A Denied Key Rights to Non-Residents of J&K

Chief Justice of India DY Chandrachud highlighted that Article 35A of the Constitution has deprived non-residents of Jammu and Kashmir of essential constitutional rights. This article, which was scrapped along with Article 370 in August 2019, stripped citizens not residing in the region of fundamental privileges like equality of opportunity, state government employment, and property acquisition. The Chief Justice’s remarks came during the 11th day of hearings on petitions challenging the abrogation of Article 370, which granted special status to Jammu and Kashmir.

Article 35A and Its Impact

Article 35A, which granted the legislature of the former state the authority to define “permanent residents” and bestow them with specific rights and privileges related to public employment, property, and settlement, was at the center of the controversy. Chief Justice Chandrachud pointed out that this provision directly curtailed fundamental rights guaranteed by the Indian Constitution. He specifically mentioned Article 16(1), which guarantees the right to employment in the state government, and Article 19, which recognizes the right to live and settle in any part of the country.

Scrapped for Equality and Implementation of Welfare Laws

The scrapping of Article 35A was based on the premise of providing a level playing field and ensuring equal rights for all citizens of India. The Centre argued that this move brought the people of Jammu and Kashmir at par with the rest of the country, enabling the implementation of various welfare laws that were previously not applicable in the region. One example highlighted by Solicitor General Tushar Mehta was the Right to Education, which had not been enforced in Jammu and Kashmir due to the unique route through Article 370 that laws needed to take.

Impact on Special Provisions

The abrogation of Article 35A resulted in the removal of special provisions that allowed Jammu and Kashmir to maintain distinctions in areas such as education and governance. This removal was aimed at fostering a unified and consistent approach to governance and ensuring that all citizens enjoyed the same rights and opportunities across the country.

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