Article 370 Case : Live Updates From Supreme Court [Day 11]

CJI: Employment under State govt is specifically provided under Art 16(1)..so while on the one hand Art 16(1) was preserved, 35A directly took away that fundamental right & granted immunity to any challenge on the ground that it would deprive you of a fundamental right under 16.

SG Mehta: Employment, is also a right to life.

CJI: But there is a direct right under Art 16(1)...what was taken away was employment under State govt.

CJI: So those that the Constitution expressly made the provisions of Article 19 applicable, which would include these three rights and Art 16, by enacting 35A, your virtually took away the fundamental rights.

CJI: Though Part III is applicable, when you introduce A 35A, you take away 3 fundamental rights- Article 16(1), right to acquire immovable property which was then a fundamental right under 19(1)(f), A 31, & settlement in the state which was a fundamental right under 19(1)(e)

CJI: See the 1954 order. It applied entirety of Part III (fundamental rights) and so A 16, 19 applied to J&K. Now, you bring in Article 35A which creates an exception under 3 areas: employment under state govt, acquisition of immovable properties, and settlement in the state.

SG: Despite living for decades together, no person outside J&K can acquire property. Meaning thereby, no investment!

SG: They are not permanent residents. They are not getting any of these benefits.

SG: The impact was- people from PoK were driven out both Hindus and Muslims. They were driven out in '47 during raids. They were not permanent residents till 2019. There were a large number of Safai Karmacharis who filed IAs who were brought from other states for manual work

SG Mehta: A separate category of permanent residents was created and any law which provides for this kind of special privileges would not be hit either by Article 14 or Article 19 or any part of Constitution.

SG Mehta: The mistake of past should not befall on the future. That's why, what we did in those days, I'm justifying our undoing it in 2019.