Article 370: The Government of India Affidavit

On July 10, 2023, the Government of India submitted a detailed “counter affidavit on behalf of Union of India” before the Supreme Court which is hearing a bunch of petitions challenging the reading down of Article 370. Here is the text of the affidavit:

“I, Shri Prashant S Lokhande, S/o Shri S G Lokhande, aged 49 years, presently working as Joint Secretary in the Ministry of Home Affairs, do hereby solemnly affirm and state as follows:

1. That in my official capacity, I am acquainted with the facts of this case, and am competent and authorized to swear this affidavit on behalf of Union of India.

2. That the present writ petition, along with other connected matters, is pending disposal before this Hon’ble Court, in which various reliefs have been claimed by the petitioners who have challenged the actions of the President of India, the Parliament and the central government with respect to the constitutional changes made to the status of Jammu and Kashmir.

3. It is submitted that the historic constitutional step impugned in the group of present petitions has brought unprecedented development, progress, security, and stability to the region, which was often missing during the old Article 370 regime. It is submitted that the same have been possible due to the policy of the Union of India of ensuring peace, prosperity, and progress in the region.

4. It is submitted that after the said historic changes, the Union Territories of Jammu & Kashmir and Ladakh has witnessed profound ameliorative, affirmative, and progressive changes in the last four years encompassing its entire governance – including the developmental activities, public administration, and security matters which has positively impacted every resident irrespective of caste, creed, or religion.

5. The facts mentioned hereunder, which depict a comprehensive growth, development progress and stability in all spheres of life in Jammu &Kashmir and Ladakh is testament to the fact that Parliamentary wisdom, both as Parliament of India representing the will of the nation and in capacity of legislature of the State the will of residents of the region have been exercised prudently and such democratic constitutional step is changing the entire spectrum of social and economic life of residents of the region irrespective of caste, creed and region.

6. It is submitted that since 2019, the entire region has witnessed an unprecedented era of peace, progress, and prosperity. It is submitted that the life has returned to normalcy in the region after over three decades of turmoil. It is submitted that schools, colleges, universities, hospitals, and other public institutions are functioning efficiently without any strikes or any kind of disturbances during the last three years. The earlier practice of daily hartals, strikes, stone pelting, and bandhs are things of the past now.

7. It is submitted that after the constitutional changes, democratically made, major steps were taken to strengthen grassroots democracy. For the first time in its history, a duly elected 3-tier Panchayati Raj System has been established in Jammu and Kashmir. Elections for the members of the District Development Councils were held in Jammu & Kashmir in November-December 2020. As of today, there are more than 34000 elected members to the rural and urban local bodies representing grassroots democracy.

It is submitted that both the Panchayats and Urban Local Bodies have been empowered by the transfer of Funds, Functions, and Functionaries as prescribed under the 73rd and 74th Amendment of the Constitution. The “Aspirational Panchayat Development Programme” has been launched in select 285 Panchayats.

8. That with the application of all the provisions of the Constitution of India, all Central Laws are applicable to the Union territories of Jammu & Kashmir and Ladakh. The citizens were earlier deprived of the benefits of important central legislations like the Right of Children to Free and Compulsory Education Act, 2009, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1954, the Whistle Blowers Protection Act, 2014, the Juvenile Justice (Care and Protection of Children) Act, 2015, and other similarly important Central Legislations.

9. It is submitted that there were certain sections of this society prior to the decision dated 5th/6th August 2019 in the State of Jammu and Kashmir who were deprived of their basic rights i.e sections like the West Pakistan refugees, Safai-karamchaaris, Valmikis, displaced persons from Pakistan Occupied Jammu and Kashmir, children of women married outside J&K and other similarly situated persons.

With the application of all the provisions of the Constitution of India, all residents of the region are enjoying all rights that are available to all citizens in other parts of the country. These persons are now also eligible for appointment to Government jobs in the Union territory of Jammu & Kashmir for which Domicile Certificates have been issued by the Government in a time-bound manner so that all eligible persons may apply for the Government jobs and get employment.

10. It is submitted that as per the Jammu and Kashmir Reservation Act, 2004, reservation has been extended to the persons residing in the areas adjoining Actual Line of Control in direct recruitment, promotions, and admission to different professional courses. However, the said reservation was not available/extended to the persons residing in the areas adjoining the International Border. The reservation benefits was extended to the persons residing in the areas adjoining International Border vide notification dated 9th July 2019. Subsequently, vide notification dated 20th April 2020, the percentage of reservation has been increased from 3% to 4% to the persons residing in the areas adjoining Actual Line of Control/International Border who were real and regular sufferers.

11. It is submitted that as an affirmative action for the first time reservation has been extended to the Pahari Speaking people who were otherwise deprived of the fruits of the development. In addition, the economically weaker sections have received the benefit of 10% of reservation for the first time.

12. It is submitted that the Jammu and Kashmir Official Language Act, 2020 has been notified in the Gazette on 27.09.2020, making Kashmiri, Dogri, Urdu, Hindi, and English languages as official languages of the Union Territory of Jammu & Kashmir. This has fulfilled the demand of a large section of the population of the Union territory of Jammu and Kashmir as the majority of the population of the region speaks and understands these languages.

13. It is submitted that it is also important to point out that there was no political reservation, i.e., reservation of seats in the Legislative Assembly of Jammu and Kashmir for the persons belonging to Scheduled Tribes. With the Constitutional changes and enactment of the Jammu and Kashmir Reorganization Act, 2019, seats have been reserved for persons belonging to Scheduled Tribes, which has resulted in grant of reservation in the Legislature to them similar to the reservation available to such community in Legislative Assemblies of other States/Union territories in the country.

14. It is submitted that various measures have been taken for the welfare of tribal communities. Under Scheduled Tribe and other Forest Dwellers Act Implementation, 2306 Forest Rights Certificates have been issued:                                                        A number of welfare measures/schemes like Pradhan Mantri Jan Dhan Yojana, scholarship to tribal students, establishment of transit accommodations for transhumant tribal population, providing mini Sheep Farms, Dairy units, access to health care and veterinary facilities, smart schools, student hostels, KVKs, etc are under implementation for the welfare of the tribal community.

1. Notable among them are the implementation of Pradhan Mantri Jan Dhan Yojana in collaboration with TRIFED for Minimum Support Price for Minor Forest Produce, coverage of 100% Pre-Matric and Post-Matric Scholarships to Gujjar and Bakarwal students, starting of Mobile Veterinary Health services under which 3 ambulances have been provided.

1. 130 smart schools have been established in Govt. schools for tribal areas up to March 2022-23, and 6 Eklavya model residential schools have been made functional.

15. After the constitutional changes, the security situation in the Union territory of Jammu & Kashmir has improved significantly, which is evident from the table below:

Year	Terrorist Initiated Instances	Net Infiltration	Events Law & Order	Security Forces Casualty
2018	228	143	1767	91
2022	125	14	50	31
Decrease%	45.2%	90.2%	97.2%	65.9%

 

16. It is submitted that the defining characteristic of the security situation in the region, which has a direct bearing on the day-to-day life of common citizens, is ‘street violence’ which was a methodical and regular phenomenon. The street violence, engineered and orchestrated by terrorists and secessionist networks, has now become a thing of past. The organized stone pelting incidents connected with the terrorism-separatist agenda, which were as high as 1767 in the year 2018 has come down to zero in the year 2023 till date. In the year 2018, there were 52 incidences of organised Bandh/Hartal, which has come down to zero in the year 2023 till date. In addition, resolute anti-terror actions have resulted in dismantling of the terror eco-system, which is reflected in a significant drop in terrorist recruitment from 199 in the year 2018 to 12 in the year 2023 till date.

17. It is relevant to mention that bandhs and stone pelting (together), engineered, financed, and forced by the separatist-terrorist networks had tremendous negative ripple effects on the economy and the society as a whole. It is submitted that it resulted in closure of schools, colleges, and universities, trade industries and businesses on a regular basis often intermittently, which in turn inflicted severe loss of income especially upon the poor and those who worked in the unorganized sectors of the economy.

18. It also severely affected the quality of life because government officials also abstained from work either because of fear or favour or a combination of both which in turn meant a near complete disruption in governance, i.e. in maintaining public infrastructure, let alone build and improve.

19. It is submitted that roads, bridges, buildings, irrigation, justice delivery, public health and hospitals, water and electricity supply, public transport, and communication etc were all negatively affected. Post abrogation, with bandhs and street violence having almost become a thing of the past, accountability in the administration has vastly improved, with a record number of public works having been executed that are verifiable by way of GPS connected time and date stamped videos and still photographs taken before and after execution.
20. That ensuring safety and improving the quality of life for people in Jammu & Kashmir a top priority of the government. The government has adopted a policy of zero tolerance against terrorism.

21. That the government has adopted various countermeasures to neutralize the efforts and capabilities of terrorists to disturb peace in the region. The government has also encouraged policies to mainstream the youth, including providing employment opportunities to wean them away from militancy. Some of the visible areas of focus include:

1. Proactively take suitable measures by all security forces to safeguard the borders from cross-border terrorism and to contain terrorist activities.

1. To ensure that the democratic process is sustained and the primacy of civil administration is restored to effectively tackle the socio-economic problems facing the people on account of effects of prolonged terrorism in Jammu & Kashmir, and

1. To ensure a sustained peace process and to provide adequate opportunities to all sections of people in Jammu & Kashmir who eschew violence to effectively represent their view points and redress their genuine grievances.

22. It is submitted that a programme called Apki Zameen Apki Nigrani was launched in which entire land record in the Union territory of Jammu & Kashmir was computerized in a short span of less than a year and put into the public domain, enabling citizens to access the land records without any human interface. This has been supplemented by various add-on e-services launched by the Revenue Department, viz. e-FARD, e-Mutation, e-Registration, and Land Pass Books. To enable citizens for easy transfer of land, a separate Department of Registrations was created, and process of registration was made online end-to-end, thereby providing major relief to the public at large.

23. It is submitted that a new Central Sector Scheme has been notified in February 2021 for industrial development with an outlay of Rs. 28,400 Crore to boost industrial development. It is submitted that investment proposals worth Rs. 78,000 Crore have already been received online by the Union Territory of Jammu & Kashmir. During 2022-23, a record investment of Rs. 2,153 Crore has materialized on the ground. Usually, the gestation period for the establishment of industries varies from 2-5 years, and it is expected that after these investments materialize, the overall development scenario of Jammu & Kashmir will witness a phenomenal change. All the investments are coming due to the aforesaid after effects of the decision dated 5th/6th August 2019.

24. It is submitted that after the application of all the provisions of the Constitution of India, it has been ensured that all provisions of the GFR 2017, ‘Manual for Procurement of Goods & Services,” Manual for Procurement of Consultancy Services,’ and ‘Manual for Procurement of Works’ are also fully implemented in the Union territory, resulting in financial discipline and transparency in public expenditure in the Union Territory. This has been additionally ensured by the introduction of electronic tools like e-tendering, Budget Estimation Allocation Monitoring System (BEAMS), Enabling Monitoring of Public Procurement, Receipt of Works being Executed & Resources for Meaningful Transparency (EMPOWERMENT), Payment System (PaySys), Online Billing System, Photographic reporting of on-site facilities (PROOF), Digital Online Payment, e-Stamping, e-Government Receipt Account System (GRAS), e-Compendium, and e-KUBER. This has led to the stoppage of diversion and siphoning of funds from the public exchequer which is evident from the fact that the number of projects which were executed during the year has actually risen from 9,229 during the year 2018-19 to 92,560 during the year 2022-23 in a short span of four years.

25. It is submitted that the massive IT initiatives were taken post-2019, in which it has been ensured that all services of all departments would be provided only in online mode. Under the initiative till date, 450 plus services have been made online with integration on a single integration service portal ‘e-UNNAT.’ e-Services have also been integrated with UMANG, DigiLocker, and Digi Dost (NICCI Chatbot). With these initiatives, J&K has been ranked first amongst all Union territories in National e-governance Service Delivery Assessment (NeSDA) framework of DARPG 2021 in State portal and services category. This, on the one hand, has reduced delivery time and on the other hand has ensured the delivery of services without any human interface, ensuring zero corruption in the process. Most of the services have been integrated with the Rapid Assessment System (RAS) for citizen feedback on e-services. In addition, an Auto Appeal System (AAS) has been introduced for the auto-escalation of services not being provided in time under the Public Service Guarantee Act (PSGA).

26. It is submitted that all the Secretariat processes have also been computerized and brought onto the latest version of e-office, i.e., e-Office 7.0. This has actually enabled the Secretariat of the Union territory to work parallelly in both Srinagar and Jammu. It also helped in getting access to the government functionaries at both places round the year.

27. It is submitted that on the development front, out of the 53 projects worth Rs. 58,477 Crore under the Prime Minister’s Development Package (PMDP), 32 projects have been completed, and others are going on at a fast pace. Concerning the earlier languishing projects, 1,500 projects worth Rs. 2,500 Crore have also been completed, including five projects which were incomplete for more than 20 years, 15 projects for more than 15 years and 165 projects for more than 10 years.

28. It is submitted that the annual budget of Jammu and Kashmir has witnessed significant growth from Rs. 80,423 Crore in 2019-20 to Rs. 1,18,500 Crore in 2023-24, providing sufficient financial resources for the development of the region.

29. It is submitted that under Pradhan Mantri Gram Sadak Yojana, 2,961 road projects, covering 17798 Kms and connecting 2096 habitations, have been completed and J&K has been ranked No. 3 and its performance in the sector is amongst the best in the country. 19,096 Kms roads have been black-topped during the last 4 years which compared to the average macadamization of 2000 Kms road per year is a huge change. Daily average rate of macadamization has increased from 8.57 Kms per day till 2019 to 15.75 Kms per day during 2023. 302 bridges have been constructed during the last 04 years connecting the unconnected habitations. In addition, 874 road projects worth Rs. 3637 Crore have been sanctioned under NABARD. The connectivity to the valley has been subsequently improved by opening of 06 road tunnels on NH-44 including 8.45 Kms twin tube tunnel between Qazigund and Banihal, thereby, reducing average time from Jammu to Srinagar from 8-10 hours to 5-6 hours, thereby, also reducing logistic cost of goods and services to the valley.

30. It is submitted that the ‘Har Ghar Nal Se Jal’ program under the Jal Jeevan Mission (JJM) is under speedy implementation in the Union territory. Under the scheme, 23,160 rural schools, 24,164 Anganwari Centres and 3,324 Health Centres have been provided tap water. In addition, 12.20 lac, out of 18.67 lac households, have been provided functional household tap connections covering about 65.35% of population till date.

31. It is submitted that under the Pradhan Mantri Awas Yojana (Grameen) more than one lakh houses have been constructed while under Pradhan Mantri Awas Yojahna (Urban) more than 13000 houses have been completed.

32. It is submitted that the Hydro Electric potential of the Union territory, which was highly under-utilized till this time, has been realised by starting work on 3 Projects i.e. 1000 MW Pakal Dul Hydro Electric Project, 850 MW Ratle Hydro Electric Project and 624 MW Kiru Hydro Electric Project. The work on these projects have been started and are in full swing. All the projects are expected to be completed by the year 2025-26. In addition, Memorandum of Understanding (MoU) for 4 new projects worth Rs. 29,600 Crore have been signed which will add to the power generation capacity of 3,284 MW in the Union territory. In addition, huge investments have also been made both in transmission and distribution sector aimed at 24 x 7 power to the consumers.

33. It is submitted that the work on transit accommodation for the Kashmiri Pandits for their safe return to the valley is in the advanced stage and is expected to be majorly completed in the next one year.
34. It is submitted that huge investments have been made under the Health Sector to create world class health infrastructure in the Union territory which includes 2 new AIIMS, 7 new Government Medical Colleges, 5 new Nursing Colleges and 2 State Cancer Institutes. J&K has become the first in the country to launch a universal health insurance scheme under the brand name ‘SEHAT in which every household in the Union territory has been provided with Rs. 5 lac of health cover. 82.22 lac beneficiaries have been registered so far under the scheme. J&K has also one of the highest health budget allocations in the country.
35. It is submitted that two new Central Institutes of higher learning have been established in the record time i.e. IIT Jammu and IIM Jammu. In addition, 2 AIIMS one at Vijaypur and one at Awantipora are at advanced stage of implementation.
36. It is submitted that with the improved security scenario, the Union territory has also witnessed highest ever footfall of tourists viz. 1.88 Cr tourists visited Jammu & Kashmir only during 01.01.2022 to 31.12.2022 which is significantly contributing to the growth of the economy and has a direct impact on the income of common man. During the first five months of 2023, around 80.4 lakh tourists visited Jammu and Kashmir. Tourism has thus emerged as a most vibrant sector. Kashmir, which was a favorite destination of film shooting before the turbulence, is again emerging as a preferred destination for film shooting. All this is possible due to the cumulative effect of the steps taken as a consequence of the decision dated 5th/6th August, 2019.
37. It is submitted that the hosting of G-20 Tourism Working Group meeting at Srinagar in the month of May, 2023, was a watershed event in the history of valley tourism and the country proudly displayed its resolute commitment to the world that secessionist / terrorist region can be converted into a region where even international dignitaries can be invited and global events can be held.
38. It is submitted that it can be said that life has returned to normalcy in J&K after three decades of turmoil. Schools, colleges and universities are functioning without any strikes during the last three years. The earlier practice of strikes and bandhs is a thing of the past. Participation in sporting activities is phenomenal having reached 60 lakhs in 2022-23. These facts clearly prove the positive impact of the constitutional changes effected in 2019.
39. It is submitted that prior to 05.08.2019 due to non-application of the entire Constitution and consequently non applicability of several beneficial central legislations, there were obvious constraints which resulted in alienation of the region on daily basis. This alienation was fuelled by the secessionist forces and terrorist who were having the cross border support- both financial and otherwise. The lack of stability and lack of applicability of central laws also inevitably resulted in deprivation in common people. Such deprivation also compounded the situation allowing people to be misguided and misused by various secessionist and terrorist forces for anti-India activities – from stone pelting to other activities.

40. That the flow of benefits resulting from the decision dated 5th/ 6th August, 2019 has started showing its impact on the common man of the region who is now getting accustomed to peace, prosperity and stability with substantial income. For the first time, after independence, the residents of the region are enjoying the same rights which the residents of other parts of the country are enjoying. This has resulted into bringing the people of the region into the mainstream and thereby inevitably frustrating the sinister design of secessionist and anti-national forces.

Any instances on the part of the petitioners to seek the prayers as prayed for would not only be against the very interest of the people of Jammu & Kashmir and Ladakh but would also be against the security and sovereignty of India due to very peculiar geographical situation of the region and peculiar security challenges arising therefrom.

41. In addition, the respondent craves leave of this Hon’ble Court to submit a further affidavit, if required. I state and submit that the present affidavit has been filed bonafidely and in the interest of justice.

Sd/-
Deponent