Banish the tumour and cure the disease. That's what a Delhi-based think-tank close to RSS is all set to do: pose a serious legal challenge to Kashmir's 'special' provisions. The Delhi-based Jammu and Kashmir Study Centre (JKSC) is gearing up to target Article 35A, an outgrowth powered by Article 370 of the Constitution, which gives J&K special status. Article 35A allows the state to grant special privileges and rights to its permanent residents, and not to others living there, the think-tank says.

To scrap these special provisions, the Jammu and Kashmir Study Centre (JKSC) has decided to approach the Supreme Court. On July 11, the organisation will formally announce at a seminar in Delhi the date for filing the petition.

Senior Congress functionaries said they would respond only when the petition is filed.

JKSC claims that Article 35A was incorporated in the Indian Constitution through a Presidential Order on May 14, 1954, bypassing Parliament.

The Parivar's legal challenge to Article 35A could become the centrepiece in the larger battle against Article 370. The think-tank claims that Article 35A is at the root of the "regime of rights violations" in Jammu and Kashmir. According to the proposed petition, the Article was a constitutional amendment signed straightaway by the President in 1954 without the knowledge of Parliament, which has the sole right to amend the Constitution.

RSS national executive member Arun Kumar is one of the advisers with the petitioner JKSC.

'Permanent residents'

"Based on Article 370, Article 35A was added to the Constitution. This was done not by Parliament, but via a Presidential Order. Article 35A enables the state Assembly of J&K to define 'permanent residents' and to give them special rights and privileges. The ambit of permanent residents was deliberately kept narrow to exclude several communities," said Aniruddha Rajput, counsel for the petitioner. "This distinction was arbitrary and archaic. The permanent residents were given discriminatory powers. Restrictions were placed on non-state subjects in terms of public employment, voting rights, acquisition of property, settlement in state, even extending to such rights as claims to scholarships."

Permanent residents have all the rights, in most instances hyperbolic, while others do not even have the Right to Life in the state as per Article 35A, the petition will argue. The worst affected are women who marry non-state subjects and thus lose even the right to residency. West Pakistan refugees, who came to India in 1947, are also not entitled to Fundamental Rights guaranteed under the Constitution among others," Rajput said

The petition argues that because of Article 35A, several empowering provisions of the Constitution enumerated as Fundamental Rights such as Right to Education, Right to Information, etc have been denied to the category of non-residents despite the fact that they have resided in the state since Independence. "It has long been mythically believed that Article 370 confers special status on the state. Article 370 was only a temporary provision. It is Article 35A that creates special categories with special rights," said Rajput.

"Article 35A is an outrage on the Constitution of India. Article 35A was positioned in the Constitution by way of an amendment which was an executive fiat without any reference to Parliament. Ironically, it was placed in Part III of the Constitution that deals with Fundamental Rights and yet it provides for protection to existing and future laws in Jammu and Kashmir that may be violative of these very human and fundamental rights," said Jagdeep Dhankar, former Union minister with the last NDA government and senior Supreme Court advocate who is part of the petitioning team.

"Due to Article 35A, say for example, a non-permanent resident of J&K can vote in Lok Sabha elections, but not in local body elections. One can become the Prime Minister, but cannot even vote in the state Assembly elections. The non-state subjects can become IAS and IPS officers, but cannot become a peon in the state," he added

"Due to such restrictions as on acquisition of property under Article 35A, the state has suffered. We have ageing hospitals as the private sector has refrained from venturing here as they cannot acquire land. We do not have good doctors coming to the state as they cannot have property here. Industrialisation has suffered for the same reason as has tourism. Children of non-state subjects do not get admission to colleges. Another example is the Valmikis who were brought to the state during 1957. They were given Permanent Resident Certificate or PRC on the condition that they and their future generations could stay in the state only if they continued to be safai-karmacharis. And even now their children are safai-karmacharis. Such a travesty," said J&K BJP spokesperson Sunil Sethi.

According to the petition, Article 35A came into being via a Presidential Order on May 14, 1954. The then President Rajendra Prasad issued an order called the Constitution (Application to Jammu and Kashmir) Order 1954. It came into effect immediately and superseded the Constitution (of India) (Application to Jammu and Kashmir) Order 1950.

The petition argues that besides carrying out many modifications and changes, this order 'added' a new "Article 35A" to the Constitution of India. Addition or deletion of an Article amounted to an amendment to the Constitution which could be done only by Parliament as per procedure laid down in Article 368. But, Article 35A was never presented before Parliament. This meant the President had bypassed Parliament in this order to add Article 35A.

"This also meant that the amending power of Parliament under Article 368 of the Constitution itself was abridged in its application to J&K, another amendment, without Parliament ever knowing. When the President of India does not have legislative powers, he performed the function of Parliament," Rajput said.