New Delhi, August 28: The Union government, represented by Solicitor General Tushar Mehta, conveyed to the Supreme Court’s Constitution Bench on Monday that Article 35A, which exclusively applied to Jammu and Kashmir, resulted in the creation of an “artificial class.” Mehta emphasized that Article 35A introduced a distinct provision in the Indian Constitution that pertained solely to the “permanent residents” of Jammu and Kashmir.
Attorney General R. Venkataramani further reinforced this argument, asserting that Article 35A was not an alteration of Article 35, but rather the establishment of an entirely new article within the Constitution. He highlighted that individuals in similar situations, such as long-standing safai karamcharis, who did not fit the artificially defined category of “permanent residents,” were stripped of their fundamental rights in J&K.
During the hearing, it was pointed out that a woman who was a resident of J&K lost her permanent residency status if she married outside the region. Additionally, Article 370 was originally conceived as a temporary provision.
Mehta questioned the political parties in the state that challenged the nullification of Article 370 in the Supreme Court, suggesting that they should have guided the residents of Jammu and Kashmir regarding its abrogation for the sake of regional progress. He noted that even major political parties were advocating for the retention of Article 370 and 35A.
He remarked, “Till now the people were convinced by those (referring to political parties) that this a privilege you fight that nobody could take away Article 370 from you. That is the most unfortunate part.”
Mehta highlighted that despite several provisions working against the interests of the people, they were persuaded to support the retention of Article 370. He pointed out that the absence of Article 35A had led to increased investments, central policing, and a surge in tourism.
Urging the Constitutional Bench to reconsider the matter from the perspective of the people of J&K, Mehta emphasized that the impugned constitutional exercise aimed to confer fundamental rights and extend the entire Constitution to bring the residents on par with their fellow citizens, along with applying welfare laws that were previously inapplicable due to the abrogation of Article 370.
Mehta argued that the J&K Constitution and its Constituent Assembly were intended to be subordinate to the Indian Constitution. He contended that the requirement for states to sign merger agreements for integration with the Dominion of India was not obligatory.
Addressing the substitution of “Legislative Assembly” with “Constituent Assembly,” he pointed out that when a term became redundant in Article 370, it was replaced by its successor, as demonstrated by the transformation of “Sadr-e-Riyasat” to “Governor.”
Earlier, the Centre had highlighted that the Supreme Court’s verdict on the matter, regardless of the outcome, would be historic and would eliminate the “psychological duality” prevalent among the residents of Jammu and Kashmir.
Notably, a five-judge Constitution Bench led by Chief Justice of India D.Y. Chandrachud is overseeing a series of petitions challenging the 2019 Presidential Order that revoked the special status of the former state of Jammu and Kashmir and its division into two Union Territories.
The Constitution Bench, including Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, will continue the hearing on Tuesday.
