The Violation of Fundamental Rights by Article 35A in India
On August 5th, the Union Government repealed Article 35A from India's Constitution which granted Jammu and Kashmir lawmakers power to determine permanent residents and accord them special privileges. Chief Justice DY Chandrachud claimed this law denied fundamental rights to citizens who do not reside within its boundaries.
1. It is a violation of Article 14
Article 14 of India's Constitution guarantees 'equality before law' for every Indian and prohibits discrimination of any form. There are, however, exceptions to this rule; members of the military are subject to military laws; medical practitioners must abide by state-created regulations; special rules may also apply in Jammu and Kashmir due to their special relationship with India.
As such, they enjoy special status and rights and privileges that many believe should not be removed; many feel it would create a sense of alienation among Indian citizens and make them feel that they are losing a part of themselves as citizens of India.
Article 35A violates Article 14, which protects equality before the law. Specifically, this provision authorizes state legislatures to define "permanent residents" and give them special privileges in terms of public employment, immovable property ownership and settlement arrangements - in clear violation of our Constitution.
The Supreme Court recently hinted that it might strike down Article 35A in the future, yet state government has voiced strong objection to such action, asserting that its removal will undermine cultural fabric of Jammu and Kashmir and create an atmosphere of intolerance against Hindus. Furthermore, removal of Article 35A could create an outsider class who could freely live, work and settle within Jammu and Kashmir without restrictions being placed upon their activities or residency status.
The BJP led by Prime Minister Narendra Modi won recent elections with a promise to repeal Article 35A, as this promises appealed to its Hindu base which backs giving Indian-administered Kashmir its own special status. While such moves will certainly add another layer of complexity for its sovereignty concerns and separatism issues in Kashmir region, alienating itself further from rest of India - so decisions regarding Article 35A need to be carefully made before being announced as winners in India elections.
2. It is a violation of Article 16
Article 35A was repealed alongside Article 370 in August 2019. It allowed the erstwhile state of Jammu and Kashmir legislature to define permanent residents of its domain, providing special privileges such as employment opportunities, acquisition of immovable property and settlement opportunities as well as scholarships without fear of legal challenge to their entitlements. It provided immunity from judicial review of their entitlements.
Chief Justice DY Chandrachud made it abundantly clear during hearings on a petition against Article 370 being repealed that this Article violated fundamental rights for all Indian citizens, with specific reference to non-Jammu and Kashmir residents not enjoying equality and jobs under state governments as being denied. Accordingly, Article 14 and 16 were breached.
By striking down Article 35A, those opposing separatism in India's northernmost province have seen it as a victory for Indian democracy. The Supreme Court's power to uphold fundamental rights has proven unchallengeable; rule of law will continue. Removing it will bring Jammu and Kashmir closer to other parts of India while increasing economic development within Jammu and Kashmir.
Narendra Modi campaigned on a promise of abolishing Article 370 and 35A - provisions he claimed discriminate against Muslims - as part of his platform during recent elections. These promises played an instrumental role in his party's overwhelming victory.
However, some argue that revoking these articles would be detrimental to India as a whole. They fear this move would fuel Hindu nationalism within India and encourage Hindu groups to form exclusive Hindu settlements within Kashmir - leading to increased tensions there with some top leaders having been placed under house arrest as a result.
Revoking these articles will enable the youth of Kashmir to compete on an equal playing field with other parts of India, and allow them to express their political views freely without fear of oppression or persecution. Furthermore, it will promote economic development within Kashmir by encouraging businesses to invest and grow within it; while dissolving feelings of alienation amongst its people by helping them connect more closely with India overall.
3. It is a violation of Article 21
Right to Life and Personal Liberty
Article 21 of the Constitution guarantees each citizen their right to life and personal liberty without being subject to exploitation. Furthermore, privacy rights, as well as access to free education and medical treatment at government hospitals. Finally, each citizen has the opportunity to live their life with dignity.
Therefore, any act which violates these rights is considered a violation of the Constitution and cannot be allowed. For example, rape is an attack against women's dignity that violates her fundamental right to be free from exploitation - not only is this criminal but it causes emotional distress and psychological trauma as well. Similarly, privacy rights are also protected in our Constitution so any attempt at breaching them would also constitute a breach.
However, the Court has interpreted this clause to mean that restrictions can be placed on an individual's right to life and liberty if it is necessary in the public interest or to maintain law and order. The court noted this does not apply to activities which do not cause harm to society; for instance, forcing someone to listen to music loud enough to damage their ears would violate both his/her right to liberty as well as peaceful and comfortable environments.
The Supreme Court has held that the right to life includes the right to livelihood, meaning the state cannot deprive people of this fundamental right except through procedures established by law and fair, just, and reasonable means. If someone is denied their livelihood due to government action they can challenge any decisions which appear arbitrary and are contrary to legal standards.
Chameli Singh vs. State of Uttar Pradesh[lxxv] provided an example whereby the Supreme Court determined that even though land acquisition violated Article 21, as long as the procedure prescribed in relevant legislation for land acquisition had been followed. This meant the government was taking property not through force or fraud but using their power of eminent domain for public good purposes.
4. It is a violation of Article 23
Article 23 of the Indian Constitution prohibits all forms of forced labour, such as human trafficking and bonded labor. It's important to keep in mind that this right against exploitation not only applies to those working under State authority; it applies just as equally to private individuals or corporations that employ others against their will - indeed, even contractual work may violate this article if performed against one's will.
The Supreme Court has interpreted Article 25 in several cases, most notably People's Union for Democratic Rights v. Union of India [1982]. Here, the court found that forced labour included any form of work done against one's will which did not pay the minimum wage or otherwise met legal criteria for payment.
Bandhua Mukti Morcha v. Union of India [1996] was another important case wherein the Supreme Court ruled against bonded labor as being in violation of people's right against exploitation and forced them into working at subminimum wages, and to pay less than minimum wages in wages as punishment from government. Furthermore, they demanded fair payment from governments for this forced labor that they forced people into providing.
Current debate over Jammu and Kashmir's plan to repeal article 35A has thrust this topic into the public consciousness. This contentious provision granted the legislature of an erstwhile state the ability to determine who was considered permanent residents and grant them special privileges such as public employment and ownership of immovable property in that region. Removing this article would open Kashmir up to people from other parts of India who could legally acquire property and move into the state legally, changing religious demography and making the region more secular. Unfortunately, this has caused much concern among Kashmiris, including fears that their culture and traditions will be undermined - the Supreme Court is currently hearing petitions opposing to its removal.
