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

[Shuddhabrata Sengupta]

Dear all,

The link to the Noorani article in the Greater Kashmir Newspaper in  
my earlier post got inadvertently truncated. Here is the correct link.

http://www.greaterkashmir.com/full_story.asp? 
Date=3_9_2008&ItemID=26&cat=1

Thanks, Tilak Upadhyay for pointing this out.

best,

Shuddha

On 03-Sep-08, at 3:16 PM, Shuddhabrata Sengupta wrote: Dear all

> 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
>
> ====================================================================== 
> ==
> =======================
>
> 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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Shuddhabrata Sengupta
The Sarai Programme at CSDS
Raqs Media Collective
shuddha at sarai.net
www.sarai.net
www.raqsmediacollective.net