A number of petitions against the 2019 Presidential Order are being heard by a five-judge Constitution Bench led by the Chief Justice of India.
In New Delhi on August 28, Solicitor General (SG) Tushar Mehta argued that Article 35A’s restriction on its applicability to Jammu and Kashmir established a “artificial class” when speaking for the Union government before the Supreme Court’s Constitution Bench.
According to Mehta, Article 35A added a new clause to the Indian Constitution that exclusively applied to “permanent residents” of Jammu and Kashmir.
Attorney General R. Venkataramani backed with the statement of the Secretary of State by stating that “Article 35A is not a modification of Article 35 but is the creation of a new article under the Constitution.”
According to him, others in comparable situations—like the long-established Safai Karamcharis—who did not fit the arbitrarily defined concept of “permanent residents” were utterly denied their basic rights in J&K.
He said at the hearing that a resident woman who marries outside of J&K forfeits her right to permanent residence, adding that Article 370 was always intended to be a temporary measure.
Mehta questioned the political parties of the state who had appealed to the Supreme Court to challenge the repeal of Article 370, claiming that they were obliged to “guide” the people of Jammu and Kashmir over the repeal since it would allow for advancement in the area.
He said that “Your lordships have at least two major political (parties) defending (retention) of Article 370, including Article 35A,” while adamantly denying that he is being “political.”
He said, “Up until now, they (referring to political parties) were able to persuade the public that this was a privilege you fought for, and that nobody could take away Article 370 from you. The most terrible aspect is that.
Mehta said that numerous aspects worked against the interests of the populace, but the locals were persuaded to keep Article 370.
“They are now aware of what they have lost. Investments are arriving since Article 35A is absent. Since the Centre has taken over police, tourism has begun; as of today, 16 lakh visitors have arrived. Many people are employed by the new hotels that are coming up, Mehta said.
He asked the Constitutional Bench to “relook” the matter from the viewpoint of the J&K population.
Please consider the situation from the perspective of the J&K population. The challenged constitutional use of authority grants them basic rights, applies the whole Constitution to put them on an equal footing with the rest of their brothers and sisters, and applies all welfare provisions that weren’t previously applicable (before to the repeal of Article 370),” he stated.
Mehta contended that the Indian Constitution should take precedence over the J&K Constitution and its Constituent Assembly. He argued that states did not need to sign merger agreements in order to become a part of the Indian dominion.
In support of the change from “Constituent Assembly” to “Legislative Assembly,” he argued that anytime a term in Article 370 becomes otiose, it is replaced by its successor.
He provided an example of how “Sadr-e-Riyasat” became into “Governor” in the context of Article 370.
Earlier, the Centre had said that the judgment of the Constitution Bench of the Supreme Court, going either way, will be ‘historic’ and would end the ‘psychological duality’ which existed in the minds of the residents of Jammu and Kashmir.
Notably, a five-judge Constitution Bench headed by Chief Justice of India D.Y. Chandrachud is hearing a clutch of petitions challenging the 2019 Presidential Order taking away the special status accorded to the erstwhile state of Jammu and Kashmir and its bifurcation into two Union Territories.
Tuesday’s hearing will be continued by the Constitution Bench, which also includes Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant.
