Interlocutors Propose Constitutional Committee To Review Central Acts Extended To J&K After 1952
Interlocutors Propose Constitutional Committee To Review Central Acts Extended To J&K After 1952
24 May 2012
The Daily Excelsior
: Ruling out a return to the pre-1953 position, a major demand of ruling National Conference, the Central Government appointed Interlocutors on Jammu and Kashmir have favoured setting up a Constitutional Committee to review all Central Acts and Articles of the Constitution of India to the State extended after 1952. Officially made public today by the Ministry of Home Affairs this afternoon by uploading it on its website, a day after Home Minister P Chidambaram visited Kargil and Srinagar for cultural function and security review, the Interlocutors' report also made no mention of PDP's self rule or any other vision documents of separatist leaders. It, however, called for making Article 370 of the Constitution as a special provision of the State by deleting the word temporary from the Constitution. The report of the Interlocutors-Dileep Padgaonkar, a veteran journalist, Prof Radha Kumar, an academician and M M Ansari, a former Information Commissioner, proposed a 'New Compact' with the people of Jammu and Kashmir, having three components-political, economic and social and cultural-forming a single package, which cannot be accepted on a selective basis. The Interlocutors have recommended that Governor of Jammu and Kashmir should be appointed by the President after obtaining three names from the State Government, which would prepare the panel in consultations with the opposition parties. They recommended gradual reduction of All India Services cadre officers in favour of State Civil Services. They didn't favour change in nomenclatures in English of the Governor and the Chief Minister. In another significant recommendation, the Interlocutors recommended creation of three Regional Councils-one each for Jammu, Kashmir and Ladakh with legislative, executive and financial powers. They proposed that Ladakh would no longer be part of Kashmir division, as was the case presently. In another setback to National Conference, the Interlocutors have endorsed the demand of Congress, PDP, BJP and other parties that financial and administrative powers should be delegated to Panchayati Raj institutions on the lines of 73rd and 74th amendments of the Constitution of India. Calling for making the LoC irrelevant, they said: 'it should become a symbol of concord and cooperation'. The report said the return to pre-1953 position would create a 'dangerous Constitutional vacuum' in the Centre-State relationship. The clock can't be set back, it added. Major CBMs proposed by the Interlocutors included release of all stone pelters and political prisoners, amnesty for militants, who renounce violence and their rehabilitation, reduction of intrusive presence of security forces in the State, amendment of PSA and review of DAA and AFSPA, setting up a Judicial Commission on the issue of unmarked graves, fast track implementation of PM's Working Groups recommendation, return of Kashmiri, Jammu and Kargil migrants with honour and dignity and compensation for migrants of Pakistan administered Kashmir with recognition of their status as state subjects, opening of all routes across the LoC and easy trade and travel through multiple-entry permits-visas. The Interlocutors have proposed inter-Kashmir and intra-Kashmir dialogue besides resumption of talks between Hurriyat Conference and the Union Government. They observed that a political settlement in Jammu and Kashmir must be achieved only through dialogue between all stake holders including those, who were not part of the mainstream but their commitment to democracy and pluralism must be above board. J&K should continue to function as a single entity within the Indian Union. The Interlocutors had submitted their report to Mr Chidambaram on October 12, exactly an year of their term during which they toured all three regions of the State-Jammu, Kashmir and Ladakh, received about 700 delegations and held two Round Table Conferences (RTCs). Since October 12, the report of the Interlocutors was lying with the MHA. They proposed fresh financial agreement between Centre and State for economic self reliance. Referring to credibility of dialogue process, the Interlocutors wrote in their report that at many places during their visit the result of their mission was questioned by the people on the ground that reports of the Prime Minister's Working Groups were simply gathering dust. 'We have noted further that the credibility gap does not apply only to Centre-State relations but it also applied to State-region and State-district relations as well as to political representative-people relations. We were repeatedly told that trust deficit between the State's people and their political representatives was as great if not greater than the trust deficit with New Delhi'. Under the political component, the report dealt with Centre-State relations and internal devolution of powers and suggested a road map listing Confidence-Building Measures that included review of Disturbed Areas Act and re-appraisal of application of Armed Forces Special Powers Act (AFSPA). The report also favoured resumption of the dialogue process between the Centre and Hurriyat Conference 'at the earliest'. The report proposed a 'New Compact' with the people of Jammu and Kashmir having three components-political, economic and social and Culture-forming a single package, which can't be accepted on a selected basis. This should yield visible outcomes and be made interruptible, it said. 'We would like the Government to ask a constitutional expert to examine four documents prepared respectively by the National Conference, the PDP, the break way faction of the NC (ANC) and Sajjad Lone. The objective would be to enumerate both the points of convergence and divergence. We have written to separatist leaders asking for their public positions on a political settlement. If and when we get their documents, we will be in a position to formulate the broad contours of a political settlement', the Interlocutors said. On Centre-State relations, the report called for review of all Central Acts and Articles of the Constitution of India extended to the state after 1952 Delhi agreement. 'This does not mean a pure and simple return to the pre-1953 situation. The clock cannot be set back. Instead, the Group wants such a review to take into full account the changes that have taken place over the past six decades,' the report said. To build on the consensus that exists in the State, the interlocutors have recommended that a Constitutional Committee (CC) be set up to review all Central Acts and Articles of the Constitution of India extended to the State after the signing of 1952 agreement. The report said that no more central laws and Articles of the Constitution should be extended to the State by Presidential order. It also suggested that Parliament will make no laws applicable to the State unless they were related to country's internal and external security and its vital economic interests, especially in the areas of energy and access to water resources. Holding that a broad consensus existed on a political settlement in the State through a dialogue between all stake-holders including those who are not part of the mainstream, the three-member group has recommended that Jammu and Kashmir should function as a single entity. The report has listed various options relating to the contentious Articles of the Constitution including the prefix of the Article 370 extended to the State. The Interlocutors wanted the State's status to be termed as 'special' as is the case with several States under Article 371, deletion of the word 'temporary' from the heading of Article 370 which should be replaced with word 'special'. The report said a broad consensus exists in the state on the point that the State's distinctive status guaranteed by Article 370 must be upheld. 'Its 'erosion' over the decades must be re-appraised to vest it with such powers as the State needs to promote the welfare of the people on its own terms,' it said. It also said the State Assembly will submit three names to the President to the post of Governor who will be appointed by the President. It also suggested that there should be no change in Article 356 and if the State Government is dismissed, elections should be held within three months. Interestingly the Group suggested that for internal emergency, prior consultations with the State Government is required. It should be headed by an eminent personality who enjoys the esteem of the people of Jammu and Kashmir and of the people of the India as a whole. It should include as its members Constitutional experts who enjoyed confidence of all major stake holders. The CC's conclusions, to be reached within six months, will be binding on 'all of them'. The Interlocutors group has said that the CC shall be mandated to conduct its review bearing in mind the dual character of Jammu and Kashmir-being a constituent unit of Indian union and enjoying a special status under Article 370 of the Constitution-and the dual character of the people-State subjects as well as Indian citizens. 'The review will, therefore, have to determine whether - and to what extent - the Central Acts and Articles of Constitution of India, extended with or without amendment to the State, have dented Jammu and Kashmir's special status and abridged the State government's powers to cater to welfare of its people,' the report said. The CC's recommendations must be reached through consensus so that they are acceptable to all stake-holders represented in the State Assembly and Parliament. The next step would be for the President in exercise of powers under Article 370 to issue an order incorporating the recommendations of the CC. The order will need to be ratified by a Bill in both Houses of Parliament and by each House in the state legislature by a special two-thirds majority to be presented to the President for assent. 'Once this order is over, clauses (1) and (3) of Article 370 shall cease to be operative and no orders shall be made by the President here after under the said clauses as from the date of final order,' it said. It added that the CC would need to reflect on quantum of legislative, financial and administrative powers that the State Government should delegate to the three regions at all levels of governance-the regional, district and Panchayat-Municipality. The report recommended that for promotion of the State's economic self-reliance, a fresh financial agreement between the Centre and the State is required. 'We believe that retaining many of the Central laws made applicable to the State over past six decades should not give rise to any strong objections. They must be seen to be what they are: fairly innocuous laws that have been beneficial to the State and its people and enabled the State to conform to international standards, norms and regulations', the report said. Referring to that they called 'contentious issues', the Interlocutors recommended that the word 'temporary' should be deleted from the heading of Article 370 and from the title of Part XXI of the Constitutions and replace with the word 'special' as it has been used for other States under Article 371 (Maharashtra and Gujarat). On the appointment of Governor, they said the State Government in consultation with the Opposition parties shall submit a list of three names to the President, who can ask for more suggestions, if required. The Governor will be appointed by the President and hold office at the pleasure of the President. On Article 356 of the Constitution, they recommended that action of the Governor was now justifiable in the Supreme Court. The present arrangement should continue with the proviso that the Governor will keep the State Legislature under suspended animation and hold fresh elections within three months. On Article 312, they said the proportion of officers from the All India Services should be gradually reduced in favour of officers from the State Civil Services without curbing administrative efficiency. 'The nomenclatures in English of the Governor and the Chief Minister should continue as at present. However, equivalent nomenclatures in Urdu may be used while referring to the two offices in Urdu', the Interlocutors said. Proposing creation of three Regional Councils, one each for Jammu, Kashmir and Ladakh, the Interlocutors, however, recommended that Ladakh would no longer be part of Kashmir division. They called for certain legislative, executive and financial powers to the Regional Councils. They have listed powers of State Legislature to the Regional Councils. In this regard, they have also referred to the agreement reached on Gorkhaland, which can be considered. 'A further devolution of executive and financial powers to Panchayati Raj institutions at the level of a district, a village Panchayat, Municipality or Corporation would be part of the overall package. All these bodies will be elected. Provisions will be made for representation of women, SC-STs, backward clans and minorities. MLAs will be ex-officio members with voting rights', the report said. It added: 'the Parliament will make no laws applicable to the State unless they related to the country's internal and external security and its vital economic interest, especially in the areas of energy and access to water resources. 'These changes should be harmonized in all parts of the former princely State. All opportunities for cross-LoC cooperation should be promoted. This will require substantial Constitutional changes Pakistan-administered Jammu and Kashmir'. The Interlocutors called for taking all appropriate measures to regard Jammu and Kashmir as a bridge between South and Central Asia. They said settlement must treat Jammu and Kashmir as a single unit. 'There should be no bifurcation or trifurcation of the State', they added but admitted that different voices were heard in Leh on this subject. The Interlocutors observed that the people of Jammu and Kashmir yearn for a permanent end to the conflict that has dominated their lives for 22 long years, and for a peaceful resolution of its root causes. 'They want armed violence to cease forever, the miasma of fear that shadows their lives to lift, and the ugly practices that have been bred by conflict to vanish. They would like the line that divides the erstwhile princely State to 'become invisible', and for their bonds of pluralism and tolerance to be restored. They want the opportunities and mobility that the 21st century offers; in a world with fewer and fewer borders, it is intolerable that they are held hostage by borders of war and isolation. Above all, they long for a life of dignity and honour, of democratic freedoms and the rule of law, a life in which they are masters of their own destiny', they said. Asserting that any resolution must be based on the vision for a future that has emerged from their interactions with more than 700 delegations during our visit to the 22 districts of the State over the past eleven months, they said: 'such a future would see the State acting as a bridge between India, Pakistan and Central Asia; with its glorious heritage of syncretic philosophical, religious and linguistic practice restored; its children taking their place in the young firmament of South Asia and beyond; its economy freed from the shackles of State control; and, most of all, its people living in the harmony that distinguished them during the dark days of partition'. 'The lodestar for arriving at this vision is the empowerment of the State's people to enable them to address their political, economic, social and Cultural concerns, interests, grievances and aspirations without the pulls and pressures that have stymied it time and again. As former Prime Minister Atal Behari Vajpayee had said, 'Jammu aur Kashmir ko insaniyat ke daire mein dekhna hai' . This calls, in the first place, for upholding the distinctive status of Jammu and Kashmir -enshrined in Article 370 of the Constitution of India- in letter and spirit. The State must be at liberty to acquire such powers as it needs to promote the welfare of its people on its own terms. 'Political space must be provided to all stakeholders to finesse Jammu and Kashmir's constitutional bonds with the Indian Union that find mention in both the Constitution of India and the Jammu and Kashmir Constitution. It stands to reason that such an exercise would in no way compromise India's internal and external security requirements', the Interlocutors said in their report. The New Compact of the Interlocutors proposed to simultaneously establish a multi-layered grid of devolved institutions of democratic governance across the State. 'This alone will go a long way to arrest and gradually diminish the sense of victimhood that grips every region and every religious, ethnic, linguistic and socially-disadvantaged community, including people uprooted from their homes due to wars and endemic violence, without harming the unity and integrity of the State or undermining its pluralist character'. Noting that the sense of victimhood is articulated in the most intense emotional terms in the Kashmir Valley, they said the reasons are all too compelling. 'Here, for over six decades, people have experienced what, in their eyes, constituted a systematic denial of their democratic rights. They have been witness to rigged elections, the dismissal of elected Governments and installation of pliant ones, the arrests of their popular leaders, the choking of dissenting voices through harsh laws, the detention of political prisoners without the due process of law; the failure to bring to book those guilty of violating human rights; and, not least, violence perpetrated by militants and by the security forces. That these alleged violations of human rights - including the deaths of 104 youth in the summer of 2010 - did not adequately figure either in the Indian media or in Parliament is seen, rightly, as India's lack of concern for the sufferings of the Kashmiri people', the report of the Interlocutors said. 'Add to this the widespread allegations of mis-governance, pervasive corruption among the political and bureaucratic elites, lack of quality education and public health services; poor physical infrastructure and woefully inadequate job opportunities, especially for skilled and educated youth. All these factors, taken together with what is seen as a mushroom growth of religious extremism of all hues, have brutalized Kashmiri society to such an extent that today it fears for the very survival of its religious and cultural identity', the report said. The Interlocutors said this accounted for political demands ranging from 'Azadi' and the establishment of an Islamic State to autonomy, self-rule, achievable nationhood and such other alternatives. At the heart of all these dirges, however, is the sentiment that the woes of Kashmir are due to the emasculation of the substance of its distinctive status enshrined in Article 370 of the Constitution of India. 'The concerns, interests, grievances and aspirations of Jammu and Ladakh are of another order. People in these regions strongly believed that the Valley politicians have given them a raw deal largely due to an iniquitous delimitation of constituencies. Indeed, there is a strong sentiment in both regions that the Centre has neglected their grievances because of their robust pro-India inclinations. It has taken the people of Jammu and Ladakh for granted and, to make matters worse, consistently chosen to 'pamper' the political and bureaucratic elites of the Valley. Such 'pampering', they allege, accounts for the sentiments of rage and frustration, particularly among the youth of the two regions. The youth have expressed their sentiments in a peaceful manner so far. But it is only a matter of time before the protests take an ugly turn - as they have in the Valley - unless the grievances are addressed on an urgent and sustained basis, the Interlocutors said. They noted that the anti-Valley feelings have widened the regional divide in the State, particularly between Kashmir and Jammu. On certain issues - such as the establishment of facilities for the Amarnath pilgrims polarization has taken place along communal lines. Some sections of Jammu opinion therefore clamour for a separate State. 'The demand for Union Territory (UT) status is near unanimous in Leh, cutting across not only party but also community lines (including the small Muslim community, for whom however UT was the least bad of options). There is also a demand for Ladakh to be made a province, on the grounds of its considerable territorial size. Indeed, territorial size is a hot issue in Leh. The immediate grievance is financial, that the principle of State budgetary allocations on population basis is by its nature biased in a region, which is territorially large but sparsely populated. The development of infrastructure suffered severely as a result, and there is little doubt that for infrastructure development allocations need to be made on territorial requirements rather than on the basis of the population'. The report said within these regions, however, some communities have their own set of grievances rooted in fears about discrimination by another community. The five Muslim-majority districts of Jammu direct their ire at those Hindu and Muslim Jammuites in Jammu city who seek statehood for Jammu province, much like the Shia dominated district in Kargil is wary of Buddhist-dominated Leh, which seeks Union Territory status for Ladakh. Muslims of these districts indeed argue that granting such a status to Ladakh or establishing a separate State in Jammu will force them, much against their grain, to cast their lot with the Kashmir Valley. 'Should that happen, the minorities in these districts, too, fear that they will face another partition trauma'. The Interlocutors said democratic governance through appropriate regional and Panchayati Raj institutions will alone guarantee that the search for a political settlement is not seen through the prism of a particular region or community. In the bargain, it will ensure that a polarization of people along communal, sectarian or ethnic lines is well and truly pre-empted. And it will provide communities uprooted from their homes - most significantly, the Kashmiri Pandits - a direct stake in the State's power structure . The Interlocutors quoted Prime Minister Dr Manmohan Singh as saying that Kashmiris needed freedom from all forms of intimidation, oppression and violence perpetrated by State and non-State actors to enable people to exercise their democratic rights with their honour and dignity intact, freedom from all forces of religious extremism, ethnic or regional chauvinism and majoritarian conceits that disturb communal and inter-regional harmony. 'Progress on the resolution of outstanding issues between India and Pakistan will hugely facilitate the multi-track deliberations. The establishment of a similar, multi-layered grid of institutions of democratic governance in the areas of Jammu and Kashmir under Pakistan's de facto control can lead to developing consultative mechanisms, consisting of representatives of both sides, to address issues of common interest and concern, especially in areas like water, tourism, forestry, hydel power and the protection of the environment', the Interlocutors said. They added that an India-Pakistan understanding on Kashmir should be a winwin result for both countries, especially in terms of safeguarding their respective security interests as well as their sovereignty in the areas of the erstwhile princely State under their administration. The report also listed several recommendations to harmonise relations between people on both the sides of Line of Control including a hassle-free movement of people and goods across the LoC and a consultative mechanism where elected representatives from both sides can deliberate on issues of common interests like water, economy, tourism and trade. This would be especially effective if democratic institutions of self-governance are established in areas of princely state under the de-facto control of Pakistan. 'The core idea here is to make the LoC irrelevant, a mere line on a map,' it said. Pointing out that the roadmap leading to political, economic and cultural freedoms depends on credibility of dialogue process, implementation of key CBMs and building consensus among key stakeholders, the Interlocutors proposed a set of CBMs to help establish a credible dialogue for resolution of the problem. The CBMs included amendment of Public Safety Act (PSA) and review of Disturbed Areas Act (DAA) and Armed Forces Special Powers Act (AFSPA), rationalization of security installations by reducing their spread to few strategic locations and creating mobile units for their rapid response, fast track implementation of the recommendations of Prime Minister's Working Group including making return of all Kashmiris, mainly Pandits (Hindu minority) a part of State policy, providing better relief and rehabilitation for widows and orphans of violence in the State including widows and orphans of militants and facilitating the return of Kashmiris stranded across the LoC, many of whom had crossed over for arms training but now wish to return peacefully. Other CBMs recommended by the Interlocutors included inter and inter-Kashmir dialogue, establishing exchange programmes of students, writers, artists, craft persons, encourage cross-LoC tourism and open radio and television programmes in the State languages, creation of Special Economic Zones (SEZs) for promotion of industry with financial and fiscal incentives on the pattern of North Eastern States, transfer of Central sector power generating projects to the State and declared hilly, remote and backward areas as Special Development Zones. The CBMs also included release of all remaining stone pelters and political prisoners against whom there are no serious charges withdrawal of FIRs against those, who were first timer or minor offenders, amnesty for militants, who renounced violation followed by their rehabilitation, reduction of intrusive presence of security forces, rehabilitation of all victims of violence, constant review of implementation of various Acts meant to counter militancy, return of Kashmiri Pandits, Jammu and Kargil migrants to their homes to lead a life of security, honour and dignity, adequate compensation for migration from Pakistan administered Kashmir and recognition of their status as State subjects, fast track implementation of recommendations of the Prime Minister's Working Group on Relations Across the LoC, opening up of all routes across the LoC and easy trade and travel through multiple entry permits-visas. The Interlocutors recommended establishment of an empowered group to monitor implementation of the CBMs proposed by them, which have not been implemented so far. The Group recommended resumption of Government of India-Hurriyat Conference dialogue at the earliest opportunity to yield visible outcomes. The dialogue should be made uninterruptible, it said. They called for encouraging Pakistan and Pakistan administered Jammu and Kashmir to enter into dialogue on the basis of points emerging from GoI-Hurriyat talks. They proposed agreement between India and Pakistan to promote civil society interactions for Jammu and Kashmir on both sides of the LoC. They proposed an agreement between India and Pakistan to promote civil society interactions for Jammu and Kashmir on both sides of the LoC. Referring to a number of delegations which stated that no permanent or lasting solution can be achieved unless it applied also to those parts of the former princely State which were under Pakistani administration, the Interlocutors said this would necessitate wide ranging Constitutional change in Pakistan administered Jammu and Kashmir. 'If agreed, such harmonization will permit the development of joint institutions across the LoC for development, resource generation and other common matters', they added and recommended that these issues should be discussed with the concerned representatives on other side of the LoC. The Interlocutors recommended that the search for solution shouldn't be made contingent on India-Pakistan talks. 'If the stakeholders in Jammu and Kashmir are willing to enter into a settlement, the door can always be kept open for Pakistan to join', they said, adding the key objective as Prime Minister Dr Manmohan Singh has also stated was to make to LoC irrelevant. 'It (the LoC) should become a symbol of concord and cooperation'. They said during their visit a unanimity was observed on hassle-free movement of people, goods and services across the LoC and the International Border leading to institutionalized cooperation between two parts of erstwhile princely State in all areas of mutual interest and concern. 'This would be best achieved if institutions of democratic governance are established at the level of the State, the region and the sub region in those parts of Jammu and Kashmir that are presently administered by Pakistan', they said. They added that there was broad consensus that diverse aspiration of three regions-Jammu, Kashmir and Ladakh and of sub regions of various ethnic and religious groups of people uprooted from their homes due to wars or endemic violence must be addressed. This, they asserted, called for financial and administrative empowerment of elected bodies at the level of the region, the district, the block and the Panchayat-Municipality. 'To promote the State's economic self-reliance, a fresh financial arrangement between the Centre and the State was required. This would include a special dispensation for hilly, backward and remote areas and for socially disadvantaged groups', they said. On economic and social components of the 'New Compact', the Interlocutors suggested that various studies conducted on its over past several years should be considered by a high empowered group and their recommendations discussed and implemented. They pointed out that many of the acute problems in J&K that led to the anger and frustration was witnessed in 2010 summer, stem from the mismatch of responses to a changing ground situation. 'Within the State, the armed conflict has almost ended. After 22 years of conflict, public expectation of administration and rule of law is high but the existing institutions, which have been greatly degraded due to conflict are not yet capable of fulfilling their promises. 'There is a general belief in the State that their problems stem from unresolved issues of political status and Centre-State relations. This belief is not justified. The years of conflict have bred institutional dependency and inculcated deniability amongst both its political elites and the administration. 'As far as political contours are concerned, there is greater unanimity on CBMs in each region and less on the elements of a lasting solution. This is not a major obstacle as the leadership level discussion between political parties about areas of convergence on political contours is yet to begin. However, it does introduce a note of caution', the Interlocutors said. They criticised the role of the media and journalists in the state for 'inventing events for political game' and suggested a short-term training to hone their reporting and writing skills. 'The role of the media, too, has been complex, combining positive peace support with mistruths that undermine peace initiatives. Barring a small handful of anchors and reporters, the national media have underreported conflict areas and tend to focus on moments of violence or recrimination. 'The local media, by contrast, have given far more attention to peace process developments but-as occurs routinely in conflict situations-there are some amongst them who are selective in what they report and biased in favour of one or another political position,' the interlocutors' report said. The report found 'flaws' in the role of a few journalists who 'invented' quotes for their stories, which resulted in 'stumbling block' for peacemakers. Commenting on the role of journalists in the state, it said 'a few even go as far as inventing events and quotes for stories. To these few, journalism appears to be a political game rather than the pursuit of fact'. 'The negative fallout from this kind of journalism is that it acts as a brake on peacemakers who wish to move forward from stated positions, especially amongst the dissident groups,' the interlocutors said.