
December 24, 2009
Dear Prime Minister,
You had made an announcement after the Round Table Conference held on 25th May, 2006 at Srinagar that five Working Groups would be constituted to consider various issues pending in relation to the State of Jammu & Kashmir. Consequent to your announcement, the State Government constituted five Working Groups headed by different chairpersons. The fifth Group was on the important subject of “Strengthening Relations between State and the Centre”. This Group was headed by Justice (Retd) Saghir Ahmad, a retired judge of the Supreme Court. This Group had twenty one members representing various political parties and organizations. I had an opportunity to be a member of this Group on behalf of the Bharatiya Janata Party. This Group met on five days between 12th December, 2006 and 3rd September, 2007. In these meetings, each of the different members orally stated their stand on various issues for discussion. Shri N.N. Vohra, prior to his appointment as Governor of Jammu & Kashmir, used to be present in the meetings. In one of the meetings, Shri Wajahat Habibulah, Chief Information Commissioner made a detailed presentation on de-centralisation and Panchayati Raj in the State of Jammu & Kashmir.
The record available with me indicates that the 4th and 5th meeting of the Working Group was held on 2nd and 3rd September, 2007 at New Delhi. Various members gave their opinion on the agenda items. I also had an opportunity to give my Party stand on the terms of reference. The record of
proceedings circulated on 30th October, 2007 states –
proceedings circulated on 30th October, 2007 states –
“The Chairman appreciated the contributions made by the Members and thanked them for taking a keen interest in the deliberations and giving useful suggestions. He indicated that the next meeting of the Working Group would be held after about a month’s time for taking further steps to finalise recommendations of the Working Group.”
However, no meeting was held after 3rd September, 2007 and for all practical purposes the Working Group stood abandoned.
I had, as a matter of abundant caution, besides making oral submissions of my Party’s stand, submitted a written Note to the Working Group, a copy of which is annexed to this letter.
I have not received any communication with regard to any meeting for even discussing the report of this Group. I have not seen any draft report of this Group nor has the same ever been circulated. As per the record available with me, no meeting of this Group has been held since 3rd September, 2007. It is, therefore, surprising that this Group has come out with the report on various important and sensitive issues. Obviously, in a Group comprising of 21 members representing Indian National Congress, the Bharatiya Janata Party, the National Conference, the PDP, the Panthers Party, Groups of various Kashmiri Pandits etc, no consensus could ever be possible. Whose report is it that has now been presented to the State Government? Is it an opinion of a retired Judge of the Supreme Court? A Judge by training is not competent to comment on sensitive political issues. He can only adjudicate issues that are judicially determinable. It is an improper practice to drag judges into the political thicket. The practice of providing assignments to retired Judges and using them to rubber-stamp a Government’s agenda has to be deprecated. It is improper for a retired judge to have drafted a report on sensitive political subjects impinging on national sovereignty, that too two years after the last meeting of the Group without bothering to discuss it with any member of the Group. This report at best is the personal opinion of Justice (Retd) Saghir Ahmad or of those who helped him to draft it. It is certainly not a consensus document of the Working Group. The report is a farce in so far it claims to be the recommendations of a Working Group. It deserves to be fully ignored.
The crucial question, however, would still be as to why over two years after the virtual abandonment of the Working Group, this report was unilaterally authored? What was the compulsion to by-pass the Working Group and produce the report? I have an uneasy feeling that the Government wants to show to some sections of the international community that it is willing to dilute the Indian position on Jammu & Kashmir. Is this report showcased for that purpose ?
This Report is improperly prepared. I am writing to you to request you that the Central Government should not act on the basis of this report.
Even though this Working Group was appointed by the State Government of Jammu & Kashmir, it was appointed pursuant to your announcement and decision at the Round Table Conference meeting in Sri Nagar. It is for this reason that I have chosen to write to you. I will be separately sending a copy of this letter to the Chief Minister of Jammu & Kashmir.
Sincerely yours,
(ARUN JAITLEY)
(ARUN JAITLEY)
Dr. Manmohan Singh,
Hon’ble Prime Minister,
Government of India,
New Delhi.
Hon’ble Prime Minister,
Government of India,
New Delhi.
Annexure
To,Justice (Retd.) Sageer Ahmad
Chairman
The Working Group on
Strengthening Relations between the State and the Centre
Re: A note by Arun Jaitley, Member of Parliament and General Secretary of the Bharatiya Janata Party
Sir,
The Fifth Working Group has been constituted following the statement of Hon’ble Prime Minister at the Round Table Conference held on May 25, 2006 at Srinagar on the subject of “Strengthening Relations between the State and the Centre”. From the subject matter it is clear that this Group has been constituted to strengthen the relationship between the State and the Centre and not to create any further distancing in the constitutional relationship.
Various proposals have been suggested by honorable members of the Group with regard to the Centre-State relations in the context of Jammu & Kashmir. These proposals are broadly categorized in the following four sub heads:
(a) Self-rule for the people of Jammu & Kashmir.
(b) Autonomy for the people of Jammu & Kashmir in the nature of pre-1953 status.
(c) Maintenance of the current status-quo.
(d) Abolition of Article 370 and full integration of State of Jammu & Kashmir into India.
The Bharatiya Janata Party is categorically committed to the following two proposals:
(1) Abolition of Article 370 and complete integration of State of Jammu & Kashmir into the Indian Union.
(2) Decentralisation of powers within the State to regions such as Jammu and Ladakh.
What must be the criteria to determine as to which of the above four options strengthen the Centre-State Relations
We are today in the 60th year of our independence and the 57th year since the Constitution of India was adopted and implemented. The incorporation of Article 370 in the Indian Constitution was a Nehruvian misadventure. It is for the people of India, including those of Jammu & Kashmir, to pause and look back and objectively decide whether Article 370 has served the cause of the nation or the people of the State or has it at all strengthened national integration? Has Article 370 and the concept of separate status and identity resolved the problems which it was intended to resolve or has it created additional problems? The experience of the past 57 years reveals that the journey of Article 370 has evolved from a demand of a separate status to separatism. It is Article 370 and the ideology which produced it that share the blame for this unfortunate evolution.
Article 370 was a psychological barrier between a constituent State and the Indian Union. It continued to act as a political and psychological barrier. It prevented the economic development of the State in as much as it was a deterrent for potential investors.
The State of Jammu & Kashmir is strategically located on the borders of Pakistan. Pakistan has never reconciled to the fact that Jammu & Kashmir is an integral part of India. Because of Pakistan’s armed aggression in 1947-48, India lost 1/3rd of the territory of Jammu & Kashmir to Pakistan. The unanimous resolution of India’s Parliament in 1994 records that Pakistan-occupied Kashmir is an integral part of India. The Indian nation is committed to the restoration of that part of Jammu & Kashmir into India.
Not reconciled to the integration of Jammu & Kashmir into India, Pakistan has attempted conventional wars with India in 1965 and 1971. Its attacks were repelled and Pakistan paid a high price by its own division in 1971. Once fully satisfied that Pakistan could never annex any part of Jammu & Kashmir away from India though conventional warfare, Pakistan, in the late 1980s, engineered an unconventional war in the form of cross-border terrorism in the State of Jammu & Kashmir, which continues unabated. The facts of recent history are not unknown. Terrorist training camps have been set up; large scale attacks have taken place in India. Pakistani Government, its Inter-Services Intelligence and various terrorist groups operating from its soil have fomented trouble in Jammu & Kashmir and other parts of India. It is obvious that the days of re-drawing the geographical boundaries are over where no country can barter away or give any part of its territory. Its’ concern for its sovereignty does not permit it to do so. The Indian State had no option but to face both conventional and the unconventional attempts towards destabilisation. In a bid to fight terrorism, India has had a very high price to pay. We lost valuable lives of innocents as also security personnel. A large part of our national budget is being spent towards maintenance of internal security against terrorism. The innocent people of Jammu & Kashmir have been deprived of the benefits, which tourism and industrial growth would otherwise have conferred on the State. Investors do not invest in terrorist-infested areas. Tourists do not visit insecure areas. Police action and security measures used against terrorists at times result in alienating the local population, which is a result of by police actions against terrorists. Terrorism, therefore, creates a social divide. Such a divide alienates and misleads the emotional people who then start believing in, romanticising and even clamouring for self-determination.
Article 370 perpetuated a psyche that Jammu & Kashmir has a special relationship with India and is not fully a part of it. It sent a signal both to terrorists and Pakistan that its full integration could be prevented. The psyche of separate status was catalysed by terrorism in order to evolve amongst some misled sections into a demand for an independent State. Article 370 did not prove a remedy for any of the problems it tried to resolve. The historical events which followed the incorporation of Article 370 established that the provisions itself became a problem rather than the solution.
What are the real problems of the people of Jammu & Kashmir?
We regard the following as some of the real issues of the people of Jammu & Kashmir, which require to be resolved:
1) Security to the people of Jammu & Kashmir through elimination of terrorism.
2) Economic development of the State.
3) Correction of regional imbalances in the State.
4) Benefit to the people of the State in terms of an environment of economic development in the country including creation of job opportunities.
5) Grant of citizenship rights to the refugees from West Pakistan who have settled in the State; payment of compensation to the refugees from Pakistan occupied Kashmir, numbering approximately ten lakhs.
6) Rehabilitation of the displaced Kashmiri Pandits back in the Valley.
If these above problems are to be attended to and resolved, the fundamental question is: Has Article 370 anything to do with the resolution of these problems? Is further dilution of Aricle 370 into further autonomy going to resolve any of the problems mentioned above? Is there any nexus of the above problems with the kind of solutions that are being suggested? The unequivocal answer to the above is NO. The above problems can be solved only and only if there is peace and tranquillity, elimination of terrorism, an end to regional disparities, grant of citizenship rights to refugees, rehabilitation of the displaced Kashmiri Pandits back in the Valley and in providing a comfort level to both local, outside and even foreign investors that Jammu & Kashmir is heaven for investment and economic development.
The Constitutional Position
The Indian Constitution is federal in character. The powers mentioned in the Seventh Schedule in the Union List relate only to the legal competence of the Centre and the Union Legislature. The powers mentioned in the State List are within the domain of the State Legislatures and the State Governments. The powers in the Concurrent List are under a twin jurisdiction, with a primacy to the Centre. In the context of the State of Jammu & Kashmir, the Union List has been substantially depleted to include only certain limited powers. All other powers are with the State List. The Concurrent List does not exist in the context of the State of Jammu & Kashmir. List-I, Entry 97 of the Union List deals with the residuary powers, i.e. powers not defined in a specific manner in the other two lists, viz., List II and List III. For the whole of India, residuary powers are within the domain of the Centre. In the State of Jammu & Kashmir the residuary powers are within the exclusive domain of the State. The laws made by the Centre are not automatically applicable to the State of Jammu & Kashmir. They need a concurrence of and ratification by the State Government/State Legislature.
Is the problem of the State of Jammu & Kashmir relatable to the inadequacy of the legislature of the State? Is any problem of the State on account of this so-called inadequacy? The honest answer has to be NO. Compared to the rest of India, the power with the State Government and the State legislature is overwhelming. The federal character of the Indian Constitution leans in favour of the Centre, but leans entirely in favour of the State in the case of Jammu & Kashmir. This is an anomaly created by Article 370. Has the existence of this lop-sided power not created a separate psyche amongst the sections of people both across and within the border? Has the inadequacy of any power been felt in the governance of the State of Jammu & Kashmir either by the legislature or by the State Government? Obviously not. Those who are thus suggesting either continuation of this present status-quo or the grant of more power with autonomy and pe-1953 status or self-rule are not intending to do so to resolve any of the problems confronting the State. The intention is to exploit the emotive thinking of a section of people and further create a separate psyche through the onward journey of separate status to separatism. History will not forgive those who are indulging in a skewed analysis, blinding themselves to the existing problems, suggesting solutions, which are a disease worst than the remedy, and in this process, weakening the sovereignty of India. The Bharatiya Janata Party rejects this thought in its entirety and reaffirms its often-stated position for repeal of Article 370 and the integration of the entire State of Jammu & Kashmir into India as the only solution. We believe that the people of the entire country should be entitled in the interest of national integration, a right to permanent residence and to live in any and every region of India equally.
Let us not forget the lessons of history. Article 370 appears in Part XXI in the Constitution of India. The said part deals with Temporary, Transitional and Special provisions. Shri Gopalaswamy Iyyangar while moving the Bill for incorporating Article 370 (Article 306A in the Draft constitution) had referred to Article 370 as an “interim” and transitional provision. He hoped that the provision itself will wither away and had referred to Article 370 as an interim and transitional provision. Faced with criticism across the country, our first Prime Minister, Pandit Jawaharlal Nehru had emphasised the transitional character of this provision by confirming “Yeh ghiste ghiste ghis jayegaa” Even here, Pandit ji’s statement on Jammu & Kashmir was belied by subsequent events. The provision has not withered away. Not only are there demands for its permanency but for further dilution of the relationship of the State with the Indian Union . All these proposals do not strengthen the relationship of the State and the Union. They are intended to destroy that relationship in its entirety.
Regional Imbalances
There are different regions in the State of Jammu & Kashmir. Ever since Independence, the State has been administered predominantly by elected representatives from Kashmir Valley, with marginal participation of Jammu and Ladakh region. This has perpetuated discrimination in governance against both Jammu and Ladakh region. To deflect the criticism against this discrimination, a larger issue of injustice to the people of Kashmir is raised by certain interested persons. The last available data of the Indian population living below poverty line is available for the year 1999. A national average of 26% of the population in 1999 lived below the poverty line. In Jammu & Kashmir this figure is 3.6%. This is attributable, amongst other factors, to a large central assistance in the State. The per capita Central assistance in Kashmir was Rs.3000 annually, as against Rs.300 in the other backwards States like Bihar a few years ago. Even though the accuracy of the Census figures in Jammu & Kashmir have been disputed, the population of the two regions of Kashmir and Jammu is not substantially different. Kashmir’s population is only marginally higher than that of Jammu. Despite this, there is large-scale discrimination in the matter of public employment. About 3.3 lakhs out of a total 4.5 lakhs government employees and semi-government employees in the State come from the Kashmir Valley. Jammu and Ladakh regions are grossly under-represented. Ladakh’s representation in the civil secretariat is only 0.68 percent. The unemployment figures of Jammu & Ladakh are far higher than Kashmir – over 69%. No Delimitation of constituencies in the State is being undertaken presently. In the Assembly, the Kashmir region is represented by 46 members and the Jammu Province by 37 members. Only 4 members are from Ladakh. This is despite the fact that the number of registered voters in the Jammu region is 30,59,986, which is higher than the number of voters in Kashmir, which stands at 28,85,555. If an analysis is made of the money spent on developmental activities amongst the three regions, the discrimination against Jammu and Ladakh becomes more palpable. There is a strong sense of discrimination prevalent in the Jammu and Ladakh regions. It is, therefore, important and necessary that this Working Group suggests methodology of de-centralized governance in the regions of Jammu and the Ladakh. A possible option can be to set up constitutionally-empowered Provincial Councils in these two regions. These Provincial Councils should have financial and legislative jurisdiction in relation to developmental activities.
Arun Jaitley
September 2, 2007
September 2, 2007
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