[Reader-list] Noorani Reads the Fine Print of the Amarnath Accord

[Shuddhabrata Sengupta]

Dear All,

An unusual intensity of hunger for land unites corporations, state  
agencies and shrine boards in India. Captains of Industry,  
politicians and land hungry divines seem to be more interested in  
acrage than in anything else. The Mahabharata mentions the burning of  
the Khandava forest to appease a hungry god, inaugurating a long  
history of burnt and erased forests and commons. It appears as it we  
are surrounded now by 'hungry gods'. The Khandava-daha continues.

Be it Chengara (thanks, Anivar Aravind for keeping us updated about  
the land struggle in Kerala, where the ruling CPI(M) led Left Front  
is intent on displacing indigenous communities from their land), or  
Singur (where again, the ruling CPI(M) wants to gift land 'free' to a  
gigantic corporation or Amarnath,  - the issues -  remain the same -  
to do with state mediated acquisition of land, and the sequestering  
of either cultivator's land, or a natural commons into some form of  
'gated' and 'fenced' land.

There has been some premature media spin around the 'accord' that has  
been reached with the Shree Amarnath Yatra Sangharsh Samiti based in  
Jammu. On the face of it, the accord appears to grant a limited usage  
right to the Shree Amarnath Shrine Board. On closer reading of the  
text however, it becomes evident that the terms of this 'accord' are  
actually even more invasive than was the case with the substance of  
the original gubernatorial 'land transfer' order in May.

I am enclosing below - an article by A. G. Noorani, a well known  
legal historian and practitioner of constitutional law, titled
'An Immoral and Illegal Accord' which was published in the Greater  
Kashmir newspaper today. It is available on line at  -
http://www.greaterkashmir.com/full_story.asp? 
Date=3_9_2008&ItemID=26&cat=1

Noorani carefully reads the terms of the Amarnath Accord in this  
article. As I had pointed out before on this list (in my second post  
(dated 15th August, 2008) in the thread -  'Gun Salutes for August  
15' in response to Sonia Jabbar and Aditya Raj Kaul -  the anger in  
Kashmir has a lot to do with the arbitrary acquisition of land - I  
had shown, using state government figures, how the equivalent of one  
in ten fruit orchards can be said to be under the occupation of the  
Armed Forces. The 'Amarnath Land Transfer' issue needs to be seen in  
this context.

As long as that anger (regarding the alienation of land) is not  
addressed, the people of Kashmir will have no reason, in my  
estimation, to think of themselves as anything but under a brutal and  
unrelenting occupation. The current 'Amarnath Accord' in my view,  
worsens the situation, and can alienate the people of Kashmir (for  
the reasons that Noorani underlines below) even more. As such, it can  
only be viewed as yet another provocation, yet another disaster, in  
the long and undistinguished record of the Government of India's  
tragic blundering on Kashmir. It cannot but prove to be divisive in a  
situation that urgently requires the opposite.

regards

Shuddha

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An Immoral and Illegal Accord
Greater Kashmir, September 03, 2008
A G NOORANI

Srinagar, Sep 2: The accord between the Jammu and Kashmir government  
and the Shri Amarnath Yatra Sangharsh Samiti on 31 August is far  
worse than the government’s order only three months earlier on 26  
May. It grants the SAYSS concessions beyond what the May order did.  
It is one-sided and marks an abject surrender to violence, blockade  
and to communal forces. The differences between the order and accord  
are glaring. Here is a list:

1. The order was made pursuant to a decision on 20 May by the cabinet  
in which both Jammu and Kashmir were represented. The accord  
completely ignores Kashmir where the land is to be given. Jammu alone  
was represented. A week earlier, there was a clampdown in the Valley  
and top leaders were arrested.

2. Even the controversial order nowhere used the word “exclusive”.  
The SAYSS felt so emboldened as to demand it and threaten to wreck  
the deal if it was not conceded. The government yielded in the early  
hours of 31 August. Para 6A says that the Government “shall set aside  
for use by Shri Amarnathji Shrine Board exclusively the land in  
Baltal and Domail”. This order unknown anywhere in the world is  
cloaked under a lie by calling it “traditionally under use for the  
annual yatra purpose”. The traditional route for over a century is  
the Pahalgam route. The Baltal route is a recent demand. It was  
regarded by the Army and Nitish Sengupta Report as dangerous. It is  
also unnecessary if the limit of yatris set by the Report (1 lakh) is  
observed.

3. This violates the citizen’s fundamental right under Art. 19 (1) D  
to move freely throughout India. The demand of exclusivity was not  
made even in May 2008 or in decades earlier. It is pure communal  
aggression using the yatra for political demonstration not religious  
piety.

4. The duration of use is widened to cover pre and post yatra period.  
Para 6 C first says that the land will be used “for the duration of  
the yatra” including the period of preparations and winding up. But  
the very next para has these sinister words: “The aforesaid land  
shall be used according to the Board’s requirements from time to  
time, including for the following”. There follow 9 measures including  
construction, setting up of the sheds and shops etc. These can be  
done even beyond the yatra period “from time to time” and “according  
to the Board’s requirements”; may be all the year around.

5. Para 8 of the order insisted that the land “shall return” to the  
State. This is dropped in the accord. This accomplishes S.K. Sinha’s  
objective— permanent use the year round.

6.  Also dropped totally is Para 4 on payment for user.

7. Dropped too is Para 6. An undertaking of “foolproof measures  
against water pollution and Para 7 on payment of fine for damage to  
the forest. There is a pious provision in accord Para 6 C (ix) among  
the objectives of land user; namely “undertaking measures relating to  
… preservation of ecology” etc. Breach entails no fine.

8. The order of 26 May was rescinded on 1 July. The accord will  
require a fresh order to implement it. By itself the accord has no  
legal force. Section 2(a) of the J&K Forest (Conservation) Act 1997  
says “the Government shall not, except on a resolution of the Council  
of Ministers based on the advice of the Advisory Committee”  
constituted under the Act “make any order directing that any forest  
land or any portion thereof may be used for any non-forest purpose”.  
The earlier phrase “Council of ministers” merely was revised by an  
amendment in 2001 and the Forest Advisory Committee’s advice was  
added and made mandatory. “Council of Ministers” is specific. It is  
different from “J&K Government” whose powers vest now in the governor  
alone. The law intentionally provides the resolution as a safeguard.  
This Council can come into existence only after the next elections.  
In any case the Forest Advisory Committees advice on 12 July 2007  
cannot apply to this new accord which must be vetted afresh by that  
Committee. It was given before the Supreme Court’s final judgment in  
the T M Godavarman case on 23 November 2007 which lays down the law  
and makes important observations on balancing development with  
protection of environment. Failure to consider it vitiates the  
decision. Precisely based on misrepresentation of opinion of the  
deputy CM Muzaffar Hussain Beg and advocate general Altaf Naik both  
of which were given in entirely difference cases.

  The accord lacks legal efficacy as well as moral and political  
legitimacy. Any order in its implementation will be void in law. It  
is a pity that the state should bend all rules to buy peace with  
communal forces including promise to consider compensation for law- 
breakers. What of compensation to the Valley for the blockade? The  
parivar in Jammu has already begun asking for more. The Government  
has not bought peace but trouble. It is gunah-e-bey lazzat (sin  
without any taste.)

  If the state can thus bend its knees before the Sangh parivar on an  
issue like this, what hopes of justice can Kashmiris entertain when  
it comes to restoring the raped Article 370 to a status of worth and  
respect?

END

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