The contents of this report are primarily the outcome of the Group’s interactions with more than 700 delegations held in all the twenty two districts of Jammu and Kashmir and the three round-table conferences (RTCs) we organized since our appointment on 13 October, 2010. The delegations represented political parties at the State and local levels; civil society groups engaged in the protection of human rights, development and good governance; student bodies; the academic fraternity; associations of lawyers, journalists and businessmen; trade unions; religious establishments; community organizations of specific ethnic groups and people uprooted from their homes due to war or endemic violence; newly-elected panchayats members, the heads of the police, the paramilitary forces and the Army. The three RTCs – two conducted in Srinagar and one in Jammu – brought together women, scholars/activists and cultural workers from all the three regions of the State, viz. Jammu, Kashmir and Ladakh. Several thousand ordinary citizens also turned up at three mass meetings we attended to express their views on a wide range of issues. Furthermore, we met militants and stone-pelters lodged in the Central Jail in Srinagar, and the families of the victims of alleged human rights abuses. The report takes into account the vast literature on Jammu and Kashmir: scholarly studies and journalistic reportages; proposals for a political settlement contained in documents issued by mainstream and off-stream political formations; publications of think tanks; reports of various Commissions and working groups established by the Central or the State government over the past several decades; and official documents related to political and constitutional developments since Jammu and Kashmir’s accession to the Indian Union.
The political settlement we propose takes into full account the deep sense of victimhood prevalent in the Kashmir Valley. It surely deserves to be addressed with great sensitivity. At the same, we have also sought to avoid the pitfalls of viewing the myriad issues bedeviling the State from the prism of any one region or ethnic or religious community. Our interactions revealed a wide-spread desire of people to lead a life of dignity and honour. They sought, in particular: Freedom from all forces of religious extremism, ethnic or regional chauvinism and majoritarian conceits that disturb communal and inter-regional harmony; - Freedom from an opaque and unaccountable administration; - Freedom from economic structures, policies and programmes that frustrate efforts to promote inclusive economic growth and balanced development of all parts of the State;
- Freedom from social structures and policies that are detrimental to disadvantaged social groups, minorities and women;
- Freedom from harsh laws, or laws harshly applied, and judicial delays that curb the space for legitimate dissent;
- Freedom from the kind of intimidation and violence that compel people to flee their habitat;
- Freedom from threats to the religious, linguistic and cultural identity of all communities;
- Freedom from pressures on the media and on media persons, RTI activists, civil rights group and cultural organizations.
We believe that a broad consensus exists on the following points:
- A political settlement in Jammu and Kashmir must be achieved only through dialogue between all stake-holders, including those who are not part of the mainstream. Their commitment to democracy and pluralism must be above board.
- Jammu and Kashmir should continue to function as a single entity within the Indian Union.
- 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.
- People must be able to exercise their democratic rights without the strains and stresses of the past, both as State subjects and as Indian citizens. Transparent and accountable governance cannot be ensured otherwise. Nor can freedoms and the safeguarding of cultural identity, honour and dignity of every individual.
- The diverse aspirations of the 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 calls for political, 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 is required. This would include a special dispensation for hilly, backward and remote areas and for socially disadvantaged groups.
- A hassle-free movement of people, goods and services across the Line of Control and the International Border must be swiftly ensured leading to institutionalized cooperation between the two parts of the 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.
To build on this consensus we recommend 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 the 1952 Agreement. It should be headed by an eminent personality who enjoys the esteem of the people of Jammu and Kashmir and of the people of India as a whole. It should include, as its members, constitutional experts who enjoy the confidence of all major stake-holders. Its conclusions, to be reached within six months, will be binding on all of them.
The CC shall be mandated to conduct its review on the following basis proposed by us.
It will bear in mind the dual character of Jammu and Kashmir, viz. that it is a constituent unit of the Indian Union and that it enjoys a special status in the said Union, enshrined in Article 370 of the Constitution of India; and the dual character of the people of the State, viz. that they are both State subjects and Indian citizens. The review will, therefore, have to determine whether – and to what extent – the Central Acts and Articles of the 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 the welfare of its people.
The Constitutional Committee should be future-oriented in that it should conduct its review solely on the basis of the powers the State needs to address the political, economic, social and cultural interests, concerns, grievances and aspirations of the people in all the three regions of the State – Jammu, Kashmir and Ladakh – and all its sub-regions and communities. In this connection, the Committee will also need to reflect on the 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 Constitutional Committee’s recommendations must be reached through consensus so that they are acceptable to all stake-holders represented in the State Assembly and in Parliament. The next step would be for the President, in exercise of the powers conferred by Clause
(1) and (3) of Article 370 of the Constitution, to issue an order incorporating the recommendations of the Constitutional Committee.
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 margin of not less than two-thirds majority of the total membership present and voting in each House. It will then be presented to the President for assent.
Once this process is over, Clauses (1) and (3) of Article 370 shall cease to be operative and no orders shall be made by the President hereafter under the said clauses as from the date of the final order.
To facilitate the work of the Constitutional Committee, we list below our own suggestions.
We seek a New Compact with Jammu and Kashmir. It covers a wide range of issues – political, economic, social and cultural.
Political Component: Centre-State Relations:
We believe that retaining many of the Central laws made applicable to the State over the 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 also enabled the State to conform to international standards, norms and regulations. For example, laws related to opium, press and registration of books, payment of wages and insurance. Further, we believe that the national interest will not be adversely affected if certain subjects from List III of the Seventh Schedule are transferred to the State. Detailed suggestions in this respect are contained in the Chapter on the Political Components of the New Compact.
Indeed, the future-oriented approach we have suggested – one that takes into full account the strategic, political, economic and cultural changes in the State, in India as a whole, in the South-Asian region and beyond, as a result of globalization – should enable all stakeholders to reach a rapid agreement on the Articles of the Constitution of India extended to the State.
Our recommendations on certain issues of contention are as follows:
• Delete the word ‘Temporary’ from the heading of Article 370 and from the title of Part XXI of the Constitution. Replace it with the word ‘Special’ as it has been used for other States under article 371
(Maharashtra and Gujarat); Article 371A (Nagaland); 371B (Assam); 371C (Manipur); 371D and E (Andhra Pradesh); 371F (Sikkim); 371G (Mizoram); 371H (Arunachal Pradesh); 371I (Goa).
• On the Governor: the State Government, after consultations with Opposition parties, shall submit a list of three names to the President. The President can ask for more suggestions if required. The Governor will be appointed by the President and hold office at the pleasure of the President.
• Article 356: the action of the Governor is now justiciable in the Supreme Court. The present arrangement should continue with the provison that the Governor will keep the State legislature under suspended animation and hold fresh elections within three months.
• Article 312: The proportion of officers from the All India Services should be gradually reduced in favour of officers from the State civil service without curbing administrative efficiency.
• The nomenclatures in English of the Governor and the Chief Minister should continue as at present. Equivalent nomenclatures in Urdu may be used while referring to the two offices in Urdu.
• Create three Regional Councils, one each for Jammu, Kashmir and Ladakh. (The latter would no longer be a division of Kashmir). Devolve certain legislative, executive and financial powers to them. A further devolution of executive and financial powers to Panchayati Raj institutions – at the level of a district, a village panchayat, a municipality or a corporation – would be part of the overall package. All these bodies will be elected. Provisions will be made for representation of women, SC/ST, backward clans and minorities (See part VI). MLAs will be ex-officio members with voting rights.
• Parliament will make no laws applicable to the State unless it relates 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 in Pakistan-administered Jammu and Kashmir
• Take all appropriate measures to regard Jammu and Kashmir as a bridge between South and Central Asia.
The subjects out of List II of the Seventh Schedule that could be transferred from the State Legislature to the Regional Councils are listed in detail in our report.
Among the subjects from List III transferred to the State Legislature, the State Legislature could consider delegating some of those subjects to the Regional Councils.The subjects listed in ‘A’ and ‘B’ of the agreement reached on Gorkhaland can also be considered.
Meanwhile, the financial and administrative powers to be delegated to Panchayati Raj institutions will be on the lines of the 73rd and 74th amendments of the Constitution of India.
B. Cultural CBMs
In order to promote reintegration of the three regions of the State, take the following cultural steps: Initiate an inter-and intra-Kashmir dialogue, establish exchange programmes of students, writers, artists and crafts persons, create appropriate infrastructure for arts, develop multi-cultural curricula, provide translation services to the State’s many languages, revitalize the State’s folk traditions, encourage cross-LOC tourism and open radio and television programmes in the State’s languages.
C. Economic and Social CBMs
Adopt the best practices of other Indian States for the promotion of socio-economic activities under the mode of public-private partnerships; create SEZs for the promotion of industry, which should be extended financial and fiscal incentives on the pattern of the North Eastern States; provide attractive export incentives for promotion of Kashmiri handicrafts; extend technical and financial support for improving productivity and production of horticulture industry; preserve new ecology and bio-diversity of the State; ensure early vacation of industrial establishments and other buildings occupied by security forces; explore exploitation of minerals and other deposits of natural resources; operationalize an International Airport in Srinagar to attracting tourists from international destinations; expedite the completion of all infrastructure projects including rail links and surface roads connecting different regions of the State and across the borders; transfer Central sector power generating projects to the State; and declare hilly, remote and backward areas as Special Development Zones.
Need for an overall educational policy; effective implementation of health schemes; implementation of flagship programmemes through Panchayati Raj institutions.
The Roadmap leading to these political, economic and cultural freedoms depends on the credibility of the dialogue process, implementation of key CBMs and building a consensus amongst key stakeholders.
Judging from the situation on the ground and the lessons learned from previous peace initiatives, the following CBMs will help establish a credible dialogue for resolution:
(a) Speeding Up Human Rights and Rule of Law Reforms This includes the release of all remaining “stone-pelters” and political prisoners against whom there are no serious charges, withdrawal of FIRs against those of them that are first-timers or minor offenders, amnesty for militants who renounce violence and their rehabilitation, the rehabilitation of all victims of violence, reduction of the intrusive presence of security forces, constant review of the implementation of various Acts meant to counter militancy and, not least, the return of the Kashmiri Pandits, and Jammu and Kargil migrants to their homes to lead a life of security, honour and dignity, adequate compensation for migrants from Pakistan-administered Kashmir and the recognition of their status as State subjects.
(b) Amendment of the PSA and Review of the DA and AFSPA:
(c) Improvement of police-community relations.
(d) Rationalisation of security installations through reducing Their spread to a few strategic locations and creating mobile units for rapid resoponse .
(e) Fast-track implementation of the Recommendations of the Prime Minister’s Working Group on CBMs, in particular;
• Making the 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.
(f) Fast-track implementation of the recommendations of the Prime Minister’s Working Group on Relations across the LoC. This will anchor efforts to build consensus for a solution and should include opening all routes across the LoC, and easy trade and travel through multiple-entry permits/Visas
(g) Establish a Judicial Commission to look into the unmarked graves, with an emphasis on identification of missing/ disappeared persons Many of these CBMs only been partially implemented. In order to ensure better implementation, the Group recommends the establishment of an empowered group to Monitor CBMs
In order to take the political dialogue forward, the Group recommends:
(a) Resume the GOI-Hurriyat dialogue at the earliest opportunity. This dialogue should yield visible outcomes and be made uninterruptible. .
(b) Encourage Pakistan and Pakistani-administered Jammu and Kashmir to enter into dialogue on the recommendations as fine-tuned by the CC and points emerging from the GOI-Hurriyat dialogue.
(c) Agreement between India and Pakistan to promote civil society interactions for the Jammu and Kashmir on both sides of the Line of Control.
Harmonization of Relations Across the LoC
A large number of the delegations that we met believe that no permanent for lasting solution can be achieved unless it applies also to the those parts of the former princely State that are under Pakistani administration. Such a position is also in consonance with the 1994 Parliament Resolution, which sought a settlement for the whole of the former princely State. The Pakistan-administered parts, however, have been altered in the significant ways. Pakistan-administered Jammu and Kashmir is currently divided
into two parts, each with a different political status. The demography of the State has also been altered in significant ways, through migration from other Pakistani provinces. Any attempt of harmonization of Centre-State Relations and devolution of powers at the regional, district and Panchayat/ Municipality levels across the LoC, therefore, will necessitate wide-ranging constitutional change in Pakistan –administered Jammu & Kashmir. If agreed, such harmonization will permit the development of joint institutions across the LoC for development, resource generation and other common matters. This Group recommends that these issues be discussed with the concerned representatives on the other side of the LoC.
Finally, this Group recommends that the search for solution should not be made contingent on India-Pakistan talks. If the stakeholders in Jammu & Kashmir are willing to enter into a settlement, the door can always be kept open for Pakistan to join. The key objective is, as Prime Minister Manmohan Singh has expressed, make the LoC irrelevant. It should become a symbol of Concord and Cooperation.