Advani's letter to the PM

L K Advani [Images]

Leader of the opposition in the Lok Sabha

Dated: August 13, 2008

Dear Prime Minister,

It is with a deep sense of disappointment that I am writing to you with regard to the issue relating to the transfer of land to Shri Amarnath Ji Shrine Board for the purposes of providing facilities to the pilgrims who visit the holy shrine each year. It appears that the government is completely out of its depth in dealing with this issue. We are also convinced that the government is not very serious about finding a solution to this problem.

The people of Jammu division have suffered from a gross discrimination in the matters relating to the governance of the State. The census is not fairly and regularly done. The delimitation is deferred; there is discrimination in the matter of public employment, disbursal of funds and development of the region. They are told on each occasion that the Kashmir valley has a 'psyche' and therefore the government is to submit to that 'psyche' and if fairness is shown to the people of Jammu, the 'psyche' of the valley will be hurt. Recent events have shown that the people in Jammu are now determined to assert in order to claim their fair share in the matter of both governance and development of the region.

Let it be clearly understood. The problem in J&K today is not Hindu versus Muslim; nor is it even Jammu region versus the Valley. It is essentially nationalists versus the separatists. The people of Jammu supported by the rest of the country, strongly feel that the revocation of the Cabinet order with regard to Amarnath was purely under separatist pressures. There is a huge sense of hurt and injury in Indian public opinion which has resulted in the nationalist opinion being alienated because the separatists have to be pleased.

The protest of the people of Jammu has been nationalist; they hold the national flag to their heart, even when they protest. They raise slogans in support of our motherland and also the Indian army [Images]. It is for this reason that both the army and security forces are finding it difficult even to enforce the curfew. Can this group of nationalists be equated with the separatists who foment trouble in our country. This precisely is the mistake that the government is committing.

A question is being raised as to how the current problem is to be resolved. If the government is really serious about resolving the problem it must just act straight. Follow the law and follow the judicial orders and you will reach the correct solution.

There is an Act of the Jammu & Kashmir legislature, called 'The Jammu and Kashmir [Images] Shri Amarnathji Shrine Act, 2000'. This Act which provides for the constitution of the Shrine Board, also defines the duties of the Board. Section 16 of the Act reads as under:

16. Duties of the Board

Subject to the provisions of this Act and of any bye-laws made thereunder, it shall be the duty of the Board :-
(a) to arrange for the proper performance of worship at the Holy Shrine;
(b) to provide facilities for the proper performance of worship by the pilgrims;
(c) To make arrangements for the safe custody of the funds, valuables and jewellery and for the preservation of the Board Fund;
(d) To undertake developmental activities concern the area of the Shrine and its surroundings;
(e) To make provision for the payment of suitable emoluments to the salaried staff;
(f) To make suitable arrangements for the imparting of religious instructions and general education to the pilgrims;
(g) To undertake, for the benefit of worshippers and pilgrims:
(i) the construction of buildings for their accommodation;
(ii) the construction of sanitary works;
(iii) the improvement of means of communication.
(h) To make provision of medical relief for worshippers and pilgrims;
(i) to do all such things as may be incidental and conducive to the efficient management, maintenance and administration of the Holy Shrine and the Board Funds and for the convenience of the pilgrims.

It is clear that it is the duty of the Shrine Board to provide facilities for performance of worship by pilgrims, development activities around the Shrine, to undertake construction of buildings for accommodation of the pilgrims to provide sanitation facilities to the pilgrims; to provide for communication, medical relief etc to the pilgrims. It is the duty of the State to enable the Shrine Board to become effective in order to discharge its duties in an effective manner.

This Act is in consonance with the secular polity of India. The government does not run religious institutions nor does it manage them. This function is best left to the institutions of every religious denomination. This mandate emanates from the provisions of Article 26 and 27 of the Constitution which are reproduced hereunder :-

Article 26
Freedom to manage religious affairs:

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right�

(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.

Article 27
Freedom as to payment of taxes for promotion of any particular religion.

No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religious denomination.

All faiths deserve equal respect. And the State should not discriminate between followers of different faiths. This is the meaning of Indian secularism. It enjoins on us to create proper amenities, with necessary infrastructure, at the pilgrimage centres of all communities. There can be no double standards in this matter.

The mandate of Article 26 is that it is for the religious denomination to establish and maintain its religious places and to manage the affairs of their religion. It is entitled to acquire movable and immovable properties and administer them in accordance with law. It is precisely on account of the mandate of Article 26 that the SGPC manages the affairs of Sikh religious institutions, the Wakf Board look after the affairs of Muslim religious institutions and Shrine Boards as also the various religious endowments are managing Hindu religious institutions under various statutory enactments.

The spirit of Article 27 makes it clear that a secular State does not spend the taxpayers' money on religious purposes. It is the contributions of that particular religious denomination which will be used for running the affairs of the religion's activities. It is precisely for this reason that the Jammu & Kashmir Shri Amarnath Ji Shrine Board set up under the Act requires to be strengthened so that the Shrine Board itself can discharge the functions of providing facilities to the pilgrims and managing the religious shrine. This duty is necessitated because of the climatic conditions at such heights where the Shrine is located. It is the duty of the State to allocate land to the Shrine Board so that the provision of facilities can be made by the Board.

Any decision of the government the effect of which is that the Shrine Board will not provide these amenities and that they would be provided by the Tourism Department of the government is both contrary to the letter and spirit of Article 26 and 27 of the Constitution as also 'The Jammu & Kashmir Shri Amarnath Ji Shrine Act, 2000'. Since the State of Jammu and Kashmir was not allocating any land to run the functions of the Shrine Board effectively, a writ petition was filed in the Jammu and Kashmir High Court in which the High Court passed a detailed judgement on 15-4-2005 wherein a Single Judge of the High Court issued certain directions to the government. With regard to the provision of amenities the High Court Single Judge held that:

"Since the Board intends to upgrade the infrastructure across the tracks and at different places, the State shall immediately permit the user of land by the Board if already not allowed to carry on developmental activities for the benefit of the Yatra. I am informed that the Forest department has already granted permission to the Board for this purpose. Let necessary steps in this regard be taken immediately before the Yatra commences this year. The effective steps are to be taken by the concerned State authorities for effective implementation of the decision of the Board and no interference is caused by any of the State agencies on implementation of the decision of the Board."

An appeal was filed by the State of Jammu & Kashmir against this order of the Single Judge. But this part of the judgment was not stayed by the Appeal Court. On 17/5/2005 the Division Bench of the High Court passed an interim order wherein it issued certain directions with regard to the Yatra. A fear was expressed that the Shrine Board would transfer land allotted to it for user of the third parties. The Division Bench clarified this and stated as under in its interim order :

"The land to be allotted by the Board would be only for the purposes of its user and would remain allotted for the duration of the yatra. The board shall also identify the sites to be allotted for the purposes of 'Langar', erection of detachable pre-fabricated huts and toilets etc. which would not be permanent in nature and which are liable to be removed after the yatra is over. The Board shall identify the person/agency to whom the site would be allotted so as to enable the State Government to screen the activities of such person/agency��"

It is thus clear that to discharge its obligations under the Act, the State Government has to allocate land to the Shrine Board. The Shrine Board can allot it further to third parties only during the tenure of the yatra for the purposes of erecting temporary and pre-fabricated structures for providing amenities to the pilgrims.

The above is the present state of the legislation and the judicial orders. Can any body dispute that a law passed by the State Assembly should not be implemented ? Does the Govt.of India or the Governor of the State have an option not to implement the judicial orders?
A joint reading of the legislation and the court orders leads to a clear conclusion. The duty of providing amenities to the pilgrims is of the Shrine Board. The government has to give land to the Shrine Board for user. The Shrine Board may request others to put up temporary structures during the tenure of the yatra. The revoked Cabinet order precisely sought to implement the legislation and the judicial directions.

The decision of the Governor to return the land allotted to the Shrine Board back to the government is contrary to the provisions of 'The Jammu & Kashmir Shrine Board Act'. The Governor as the Chairman of the Board has no power to alienate the rights of the Board. He acted contrary to the law by not consulting the Board. Land given to the Board was pursuant to the direction of the High Court. The decision to cancel the land allotment to the Board is a violation of the High Court orders and amounts to contempt of the orders dated 15.4.2005 and 17.5.2005.

Is it the Govt.of India position that because of separatist pressures the legitimate court orders and the legislation cannot be implemented? Is it the Government's perception that the pilgrims going on Amarnath ji Yatra will not be or cannot be allowed amenities and that the State would manage the affairs of the religious place rather than a legally empowered Shrine Board. It appears that the Government of India has misread the nationalist mood of the people of Jammu which is also supported by strong public opinion in the country. This is the first time in history that the Government has succeeded in even alienating nationalist opinion. The court orders need to be complied with. The mandate of the legislation has to be obeyed. The constitutional right to religion of the pilgrims has to be made effective. The myopic attitude of the Government and its snail like speed in finding a solution has allowed the situation to escalate.

I feel greatly saddened by the loss of so many lives, be it in Jammu or in Kashmir Valley. The Government should, at least at this late hour, recognise the gravity of the situation and speedily take a just and fair decision, rather than adopt a do-nothing policy.

We urge the government to act immediately and to restore the original Cabinet order, which sought to enforce both the law and the judicial orders.

With regards,

Yours sincerely,

(L. K. ADVANI)