Abrogation of Article 370, 11th-day hearing: Supreme Court says “When you introduce Article 35A, you take away 3 fundamental rights”

The Constitution bench of the Supreme Court heard the matter related to the abrogation of Article 370 for the 11th time on August 28, 2023. The members of the bench include Chief Justice of India DY Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice Sanjay Kishan Kaul, and Justice BR Gavai. During the court proceedings, the bench asked Attorney General R. Venkataramani to look into a senior lecturer’s (Zahoor Ahmad Bhat, political science lecturer) suspension after he pleaded against the Centre’s move to abrogate Article 370. Along with this,The Constitution bench of the Supreme Court heard the matter related to the abrogation of Article 370 for the 11th time on August 28, 2023.. The bench said, “Though Part III is applicable, when you introduce Article 35A, you take away 3 fundamental rights- Article 16(1), the right to acquire immovable property which was then a fundamental right under 19(1)(f), and settlement in the state which is a fundamental right under 19(1)(e)...By enacting Article 35A, you virtually took away the fundamental rights…and granted immunity to any challenge on the ground that it would deprive you of a fundamental right under Article 16…The power of judicial review was taken away.”

Solicitor General Tushar Mehta, appearing for the Union of India, highlighted that the rights of women were lost after marrying a non-resident. He also mentioned that “Something which is impugned here is a constitutional exercise of power which confers fundamental rights, applies the entire constitution, brings J&K people at par with other citizens. It applies all laws that are welfare legislations to J&K that weren’t applied earlier. I have the list with me. Till now, people were convinced by those who guide them that this isn’t a hindrance in your progress, it’s a privilege you fight for. Your Lordships have at least two major political parties defending Article 370, including Article 35A! Now the people have realized what they had lost.” SG also asserted that “The effect of Article 370 with Article 367 is that by an administrative act of the President and the Government of the State, any part of the Constitution can be amended, can be altered, can even be destroyed and not applied, and new provisions can even be created in Constitution of India. Article 35A was created, which is a part of the Constitution of India, only to be applied to the State of J&K. This 370(1) route and 367 mechanism has been used more than once because 370 permits it. It stopped only after 5 August 2019. Otherwise, any provision, any Article could be removed.”

The Supreme Court bench heard the contentions of SG Mehta and others the arguments remain inconclusive and will resume today August 29.