- An RSS-backed ‘think tank’ has challenged the provision which allows the state to grant special privileges to its residents
SRINAGAR: The state government was asked by the Supreme Court of India to file by the first week of November its objections to a petition challenging Indian Constitution’s Article 35A, which allows J&K to grant special privileges and rights to its permanent residents.
The petition has been filed by a Delhi-based think-tank believed to be close the Rashtriya Swayamsevak Sangh, the ideological patron of India’s ruling party, BJP, and other rightwing Hindu organizations.
The Sangh parivar has made the abrogation of Article 370, which gives J&K a special status in the Indian constitution and of which the Article 35A is a corollary, one of the fundamental article of its political ideology.
“We sought time to file the objections (to the petition) and the Registry of the Supreme Court has granted it till first week of November,” said advocate Ashok Mathur, Standing Councel of J&K in the apex court.
Soon after the Narendra Modi-led NDA government came into power, RSS official Arun Kumar had said at a function in New Delhi that the “devil lies” in the Article 35A. Similar views were expressed later by Arun Jaitley, the finance minister in Modi’s government.
He went to the extent of saying that Article 35A infringed the rights of Indian citizens by denying them state subject status in the state of J&K.
Recently, the state high court observed that Article 35A of the Constitution of India was only a “clarificatory provision” meant to clear the issue of constitutional position obtaining in India in contrast to J&K.
“This provision clears the constitutional relationship between people of the rest of the country and the people of J&K. It is, in essence, information to the citizens of rest of country that on a constitutional and legal plank that they, in all respects, do not constitute a class with citizens of the state of Jammu and Kashmir,” the court said and held that citizens of J&K have their own constitution and sovereign character “which cannot be challenged, altered or abridged.”
The high court had made the observations in its landmark judgment last month while ruling that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act cannot be extended to the state.
In May 1954, the government of India led by Jawahahr Lal Nehru amended the Article 35 of the constitution. Article 35A was added much to the displeasure of the most of the parliamentarians especially from the right. The new article was enforced in Jammu & Kashmir through the Constitution (Application to Jammu & Kashmir) Order, May 1954.
Article 35A reads: “Saving of laws with respect to permanent residents and their rights: Notwithstanding anything contained in this (Indian) Constitution, no existing law in force in the State of Jammu & Kashmir, and no law hereafter enacted by the Legislature of the State – (a) defining the classes of persons who are, or shall be permanent residents of the State of Jammu & Kashmir, or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this part”.
This Article empowered the state government to deny citizenship rights to the refugees from West Pakistan and all other Indians, barring Permanent Residents of the State. Armed with absolute power, the Jammu & Kashmir Constituent Assembly adopted Section 6 which said no persons who had crossed over to the state after May 1944 will be considered eligible for citizenship rights.
In fact, Section 6 meant two things: Denial of citizenship rights to the Indians who were not Permanent Residents of the State as per the definition of Permanent Resident of the State and provision to grant full citizenship rights to those who migrated from the State to Pakistan on or after March 1, 1947 and adopted Pakistani citizenship in case they returned to Jammu & Kashmir (meaning Muslims).