NEW DELHI: Stating that it was the jehadi terror attack at Pulwama in February 2019, claiming the lives of 40 CRPF jawans, which caused it to make up its mind to pull the plug on the special status for J&K and integrate the state fully into the Indian Union, the Centre on Monday lobbed the “violation of the Constitution” charge back into the court of the petitioners who have challenged the decision of August 5, 2019.
Solicitor general Tushar Mehta took on National Conference and People’s Democratic Party, which have alleged that the Centre’s dramatic move resulted in Kashmiris losing autonomy and “internal sovereignty”, and argued that the reverse was true. He built his case around Article 35(A), saying it limited the application of fundamental rights to the residents of Kashmir and got the CJI-led Constitution Bench to agree with him about the discriminatory nature of the provision.
Defending the August 5, 2019 decision to fully apply the Indian Constitution to J&K and cast aside the state’s 1957 Constitution, Mehta said not a single action taken by the Union government and the procedures followed in that regard could be faulted on the ground that it was out of sync with past constitutional practices or they militate against the Indian Constitution.
“Two prominent political parties (NC and PDP) have challenged the decision on the ground that the Kashmiris lost autonomy and internal sovereignty. The truth is that residents of J&K had not enjoyed in full measure the fundamental rights to life, property, settlement and employment under an artificially created distinction between ‘permanent residents’ and others to deprive the latter of basic rights,” he said.
“Instead of informing the residents how they were being deprived of their precious rights because of Article 370 and Article 35A (applicable to only J&K), these two parties kept misleading the people to believe that the scrapped provisions protected their pride and special position. The hindrance to their rights were projected as their pride and they were made to fight for a provision which deprived them of their rights and worked against their interests,” Mehta told a bench of CJI D Y Chandrachud and Justices S K Kaul, S Khanna, B R Gavai and Surya Kant.
After he presented a catalogue of the rights the people of J&K were deprived of, the bench said, “Article 35A created an exception in three areas — employment under the state government, acquisition of immoveable property and settlement in the state. So though Part III of the Indian Constitution was made applicable to J&K, introduction of Article 35A took away three fundamental rights under Article 16(1), 19(1)(f) (which then was fundamental right to property), and 19(1)(a)(settlement).”
“When Article 19 was made applicable, these rights should have been given to the residents of J&K but the fundamental rights were virtually taken away. It did two things — conferred special rights on residents of the state and took away rights of non-residents of the state,” it said, agreeing with the SG’s submission.
The bench said, “Worse it gave immunity to the state government from judicial review of its decisions furthering this discriminatory conferment of fundamental rights by taking away the right of the citizens to seek judicial review of the state’s decisions.” The SG said all these rights have been bestowed on residents of J&K without discrimination after August 5, 2019 and now they enjoy rights on par with any other Indian living in any state.
However, the CJI-led bench pointed out that it was only the Union government, which is a continuing entity, had done this. The SG agreed but argued that the August 2019 decision was meant to correct the mistake. “Yes it was a mistake of the Union government in the past and it has now corrected the mistake by the decisions taken on August 5-6 of 2019. J&K has started getting investments. By now 16 lakh tourists have visited the state. New hotels are being built. Everyone has benefited from the decision.”
The SG also justified the procedure the government used, saying, “Reorganisation of J&K into two UTs followed the same pattern as was adopted in 1966 by the government to create Haryana and UT of Chandigarh by dividing Punjab, when it was under President’s rule. J&K is a UT with a legislature and only police powers are with the Centre. In the future it could become a state.”

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