[Reader-list] Noorani Reads the Fine Print of the Amarnath Accord (Nobody)
Shuddhabrata Sengupta
shuddha at sarai.net
Sun Sep 7 18:13:09 IST 2008
>
Dear All,
I welcome Pawan Durani's decision to do a detailed reading of
A.G.Noorani's critique (which I had posted earlier) of the terms of
the so-called 'Amarnath Accord' on this list and on his blog.
I am ignoring for the moment the fact that this reading comes
predictably prefaced and padded by invective, which in no way
substantiates or contributes to Durani's argument. In the interests
of the standards of a healthy debate, I will stick to engaging with
arguments contained in Durani's counter-critique, not to the ad-
hominem supplements addressed at Noorani, or the people he calls
'pseudo-secularists and jhola chaaps'.
For conveniences sake, the posting is divided into five sections,
reflecting what I believe are the most important points made by Pawan
Durani, which are as follows -
1. The Question of Whether or Not an Agreement Made in Consultation
solely with Jammu Based Bodies can be considered Representative
2. Do all Kashmiri Pandits speak in one voice? Have they been ignored
by Noorani?
3. High Court Decisions and Clearances by the Forest Department
4. The Difference between the meanings of the words 'Only' and
'Exclusively'
5. The matter of Fundamental Rights to Movement, and Article 370
I apologize in advance for the length of this posting, as it requires
me to do some amount of detailed work on Durani's objections to
Noorani's reading of the so-called Amarnath accord. So, those who are
not interested in following the intricacies of the Amarnath debate,
would be best advised to skip it in entirety.
regards
Shuddha
---------------------------------------------------
1. The Question of Whether or Not an Agreement Made in Consultation
solely with Jammu Based Bodies can be considered Representative
Durani says -
"What Noorani has forgotten that Jammu & Kashmir is a one complete
state and anyone in Jammu & Ladakh has an equal right over every
single inch of land
in the whole state. Also Noorani has completely ignored that Kashmiri
Hindus
who have been in the forefront of the agitation led by Sangarsh
Samiti also
represent Kashmir in particular. The authors seems to have probably
bowed to
the wishes of Kashmiri terrorists by erasing the thought of Kashmiri
Hindus
from even the memory."
There are several holes in the above statement. Let's go through each
one of them. The Shree Amarnath Yatra Sangharsh Samiti represents the
many organizations (almost all Jammu based) that have endorsed its
platform. It is an organization formed to give voice to a particular
set of demands, just as the Kashmir valley based Action Committe
Against Land Transfer is an organization set up to give voice to
another set of demands. None of these organizations can be said to
have a 'representative' character that embraces the entirety of the
present territory of the Indian held Jammu & Kashmir state. While one
expresses a particular opinion that is dominant in Jammu, the other
expresses a particular opinion that is popular in the Kashmir valley.
For reasons of convenience and brevity, I will call them
(unsatisfactorily) the Jammu Lobby and the Kashmir Lobby. The crucial
issue is - the Jammu lobby wants something done in the hinterland of
Kashmir, to which the Kashmir lobby objects. What principles can we
use to determine the ethical validities of these claims?
Lets take a hypothetical case in order to try and get to a reasonable
answer.
Assume that the Kashmir lobby wanted to ensure that the Mata Vaishno
Devi compex (in Jammu) be dismantled, (let us say out of concern for
the environmental damage that it thought it caused to the fragile
ecology of the entire state) and took to the streets with a militant
agitation to demand that this be done, which resulted in the
Government of India (through the offices of the Governor of the
state) negotiating a settlement with the Kashmir lobby that more or
less acceded to their demands, then would we consider that a decision
that was 'representative' of the popular will of the entire
territory? I doubt that it would. The so called 'Amarnath Accord'
cannot be considered 'representative' for the same reason.
The Amarnath Land Transfer issue has ramifications that concern,
first and foremost, the people who live in the vicinity of the land
that is claimed by the SASB, and the requirements of the fragile
ecology of the terrain, and, secondly, the pilgrims who visit the
site. Any solution to the issue in order to be seen as fair, or
'representative', must take all these interests into account.
Traditionally, the Baltal segment, over which the dispute has risen,
does not lie on the scripturally sanctioned route. It entered the
horizon of consideration, only when the Nitish Sengupta Committee
mentioned it as a possible alternative route in order to relieve the
stress on the traditional route following the avalanche of 1996. Here
too, however, the Sengupta committee report strongly recommended (for
reasons of health, safety and ecology) a restriction on the number of
pilgrims to be allowed access to Amarnath. The extent of facilities
envisaged by the SASB as a basis of staking its claim to the land in
Baltal (regardless of what Nitish Sengupta himself may now be saying)
nowhere approximates the limited number of pilgrims that the Sengupta
Committee recommended. In fact, if we look at the details of its
submissions before the Jammu and Kashmir high court on the issue we
find that it made clear its plans -
" - to raise resources to the tune of Rs 82 crore over the next
five years for providing various facilities, including LoC type
fencing [isolating the whole yatra area from rest of Kashmir], cable
car from Sangam to cave, electrification around the cave areas,
including construction of micro-hydel projects, accommodation,
toilets/bathrooms, bunk beds, sanitation and road construction from
Baltal to Sangam."
[excerpted from the SASB submission before the J&K High Court,
quoting minutes of its 8th Board Meeting]
I am not for the moment going in detail into a consideration of the
implications of some of the SASB's more absurd 'visions' which
include (among other things) the biometric scanning of pilgrims to
ensure that 'aliens' do not gain access to the route or the shrine,
or getting the Defence Research and Development Organization to
develope technological solutions to ensure that the Ice Lingam
retains its tumescence despite the sharp rise in temperature that is
occurring in the vicinity of Amarnath due to the pressure of
alarmingly large number of pilgrims and helicopter sorties.
But even if we do take into account the most significant points in
the SASB's plan that I have pointed out above, it is clearly evident,
that the the infrastructure mapped out in the 'Baltal' plan as
outlined in the SASB's submission envisages the accommodation of a
number far higher than the maximum number of 700 additional yatris
recommended by the Nitish Sengupta committee.
The argument is precisely about the fact as to whether or not - 'the
transfer of land' - addresses the concerns of the traditional
inhabitants of the land, the ecosystem of the terrain, and the
pilgrims who pass through it. Is the creation of a fenced in
'territory within a territory' which is clearly designed to
accommodate far more numbers than the stipulated 700 be considered
the kind of burden that this terrain can accommodate? Can it
considered to be 'representative' of the interests of the terrain,
its inhabitants, even of pilgrims? .
Even if we take Durani's argument that the that 'Jammu & Kashmir is a
one complete state and anyone in Jammu & Ladakh has an equal right
over every single inch of land in the whole state.' on face value, we
still have to ask, how is this 'right' to be ascertained? In any
representative form of government, this 'right' can be ascertained,
only by the elected representatives of the people.
Even if we theoretically assume that the legislature of the State of
Jammu & Kashmir is a body made up of the freely elected
representatives of the people of the state (an assertion with which I
do not agree, but am willing to consdier, for the state of the
argument) then too, neither the Shree Amarnath Ji Shrine Board, nor
the Shree Amarnath Yatra Sangharsh Samiti, nor the office of the
Governor is a body that can be said to be 'representative' in a legal
sense, of anybody, let alone the 'people of Jammu and Ladakh'. Since
the SASB is an act created by the decision of the state legislature,
only the state legislature has the 'representative authority' to
decide whether or not a transaction undertaken by the SASB is a
reflection of the constitutionally verifiable will, or interests, of
the people who constitute the electorate of the state of Jammu and
Kashmir.
2. Do all Kashmiri Pandits speak in one voice? Have they been ignored
by Noorani?
Most importantly, Durani claims that "Noorani has completely ignored
that Kashmiri Hindus who have been in the forefront of the agitation
led by Sangarsh Samiti also
represent Kashmir in particular."
This is an interesting, but particularly pernicious assertion, and
bears a detailed consideration. I am not for a moment denying the
fact that some organizations that claim to speak on behalf of
Kashmiri Pandits have been actively involved in the agitation led by
the Sangharsh Samiti against the revocation of the land transfer.
But does this fact automatically translate into veracity of their
claim to 'represent Kashmir' or even 'representing all Kashmiri
Pandits'.
Let me quote below a report that appeared in the Rising Kashmir
newspaper, as recently as a month ago. It bears reading, in its
entirety.
----------------
"Handover control of Hindu properties to KPs
Abid Bashir, Rising Kashmir Newspaper, August 8, 2008
Srinagar, Aug 06: Kashmiri Pandit Sangarsh Samiti (KPSS), an
organisation of non-migrant Pandits on Monday said that the Amarnath
Sangarsh Samiti (ASS) was in wrong hands and appealed Governor N N
Vohra to hand over the control of
all religious properties of Kashmiri Pandits (KPs) especially the
Amarnath cave to KPs to end the present crisis. The ASS is being used
as a tool by some elements in Jammu to fulfill their own interests.
It is in the wrong hands. They should rethink what they are doing,
KPSS President Sanjay Tickoo told Rising Kashmir.
He appealed Governor N N Vohra to hand over all religious places of
the Pandit community to the KPs who preferred to stay put in Kashmir
when armed rebellion erupted in 1990.
The Governor should hand over the charge of all religious places
belonging to the Pandit community right from Karna to Srinagar to the
KPs. The Amarnath cave and the charge of the yatra should also be
given to us. We stayed back in hey days of armed resistance,”
Tickoo said.The number of KPs residing in Kashmir is enough to take
the charge of all our religious places including that of organising
the Amarnath yatra. The KPSS blamed all former MLAs of National
Conference (NC), Congress and Peoples Democratic Party for the
deteriorating situation in Jammu and the recent land transfer
controversy. We had requested the former governments to pass the
temple and shrine bill in the assembly but due to their vested
interests the bill was ignored. Resultantly, the situation took a
violent turn in the form of land controversy and now Jammu
crisis.Tickoo said. Had the bill been passed, the control of all
religious places including Amarnath cave would have been in the hands
of KPs and there would have been no controversy at all, he said. The
KPSS president said that the Jammu crisis was a ploy of some vested
interests aimed to divide the State into two provinces; Kashmir and
Jammu. There are some vested interested politicians who are making
the lives of the people of State miserable for their dirty political
games, he said. Tickoo questioned the Governor saying if curfew was
imposed in Jammu how come it was possible that the people were still
coming out on the roads to disrupt the calm.
Despite Army's help, situation in Jammu doesn't seem to be improving.
We appeal our Pandit and Muslim brethren in Jammu to unite to defeat
the unscrupulous elements who are triggering communal frenzy in
Jammu,he said."
--------
No doubt, Pawan Durani will jump to the gun and say that Sanjay
Tickoo, and the Kashmiri Pandit Sangharsh Samiti, the organization
that has continued to represent the interests of those Pandits who
refused to leave the Kashmir valley, and who continued to share in
the fortunes and misfortunes of their fellow Kashmiris (and about
whom not much gets said by their 'migrant leadership' brethren) - are
paid agents of anti-national forces.
But saying that amounts exactly to the same as saying that those
Kashmiri Pandit 'leaders' and their followers who participated so
militantly in the Amarnath Sangharsh Samiti agitation, or those who
are part of the Panun Kashmir hydra are paid agents of the Sangh
Parivar (the Hindu Right) or the Intelligence Bureau. Neither
assertion says anything about whether or not 'all' Kashmiri Pandits,
let alone, 'Kashmir' itself is beholden to one or the other point of
view.
If anything, we would have to admit that there is a natural justice
in the demand of the Kashmiri Pandit Sangharsh Samiti voiced by
Sanjay Tickoo, that the religious institutions of Kashmiri Pandits
and sites sacred to them (such as the Amarnath Shrine) in the Kashmir
valley be looked after and maintained by those Kashmiri Pandits who
have stayed on in the valley, because, they more than anyone else
have a stake in their maintenance and upkeep. Were this to be done,
as Tickoo points out, there would be no need for the State to
interfere in the management of the religious affairs of the community
through instruments such as the presently constituted SASB. In fact,
as I have always maintained, the State has no business in being
present in matters to do with the administration of religious
endowments of any faith, and this principle should apply as much to
Muslim Auqaf as it does to Hindu temple trusts, Sikh Gurdwaras and
Christian churches.
-------
3. High Court Decisions and Clearances by the Forest Department
Durani goes on to say -
"What Noorani does not either know or does not want to be known is
that there
is a order of High Court dated 15.04.2005 [ OWP No 732/2004 Rampal
Bathonia
Vs State ] in which the Hon Court Ordered " Since the Board intends to
upgrade the infrastructure across the tracks and at different places,
the
state shall,immediately permit the use of Forest Land by the board,if
not
already allowed,to enable it to carry out the development activities
for the
benefit of the Yatris. I am informed that the Forest Department has
already
granted permisssion to the board for the purpose."
It has been pointed out before, that there has been strong reason to
see that the clearances obtained from the Forest Department
(including those that pertain to environmental questions) are clear
instances of conflict of interest at work. The administrative head of
the Forest Department, is, as is now public knowledge, none other
than the wife of the erstwhile executive officer of the Shrine Board
(under whose tenure the matter of the 'land transfer' was inititally
passed, in undue haste) Morover, the High Court Judge who gave these
decisions happened to have been formerely an advocate of the Shrine
Board itself. Clearly, these decisions cannot be said to be free of
prejudicial motivation, and invite substantial reasons for scrutiny
in terms of whether or not they were made under the influence of
personal gain or favour.
Normally, when land is acquired, say for industrial purposes, or for
any other public purpose by the Government of India, especially when
it is land considered to be part of special environmentally
vulnerable zone, a detailed environmental audit is done by boards
that contain independent experts in the field. Forest departments,
well known for their collusion with timber lobbies, poachers and
other interested parties, are expressly not authorised to conduct
'environmental audits'. Clearly, no such measures were taken, or are
even now being contemplated in this case.
4. The Difference between the meanings of the words 'Only' and
'Exclusively'
Durani further says, -
"The state Govt went in to appeal to the Division Bench of High
Court. The division bench vide its interim directions on 17.5.2005
ordered as follows ” The land to be allotted by the board would be
only (Emphasis, Durani) for the purpose of the user and would remain
limited for the duration of Yatra."
It is on the basis of the wording of this statement that Durani
refutes Noorani's claim
- "Even the controversial order nowhere used the word “exclusive”..."
Now, there is a world of difference between the words 'only' and
'exclusive'
In the text of the High Court order that Durani quotes, the word -
'only' can 'only' mean one thing, that the land would 'only' be used
for the purpose of the user - facilitating pilgrimage - and would be
limited for the duration of Yatra.
The recent accord, however, by replacing the word 'only' with the
word 'exclusive' undertakes a very significant shift in the meaning
of what can be done with the land, and who can do whatever that can
be done. The expression 'Only for the purpose of the user' - suggests
that there is one and only one use, to which the user (here the SASB)
is entitled. 'Exclusive' usage rights, however, means that there can
only be one user. It does not limit usage, it limits who can be the
user. In fact, it clearly suggests that the 'user' can do whatever it
wants to, because it has the'exclusive' (it 'excludes' all other
claims and claimants) rights over the land.
The precise language of legal documents and agreements is a matter
that requires a great deal of attention. Unfortunately, by conflating
'only' in the high courts order, with 'exclusively' in the recent
accord, Durani does not give us reason to believe that he has paid
the attention that this matter requires. This reveals, not the
strength, but the shallowness of his argument.
-----
5. The matter of Fundamental Rights to Movement, and Article 370
Durani says -
"Alas Noorani uses the fundamental rights to his own requirements.
Wonder why
Noorani does not support abrogation of Article 370 of Indian
constitution.
Of all the fundamental rights listed in our constitution the first
one is
"Right To Equality"….."The State shall not discriminate against any
citizen
on grounds only of religion, race, caste, sex, place of birth or any of
them." Does Noorani not feel that 100 crore citizens of India are denied
these rights as they do not equal the pampered state subject of Jammu &
Kashmir. Why deny the right to buy land in Jammu & Kashmir to 100 crore
Indians? Why is Noorani silent on this fundamental right ?"
It needs to be pointed out, that Article 370, as it stands at
present, does not restrict the right to movement of any Indian
citizen in or out of Kashmir. It restricts the matter of ownership of
land, and Article 370 is not alone in this regard. The Sixth Schedule
of the Indian constitution applies restrictions on the ownership and
right to alienate land in several areas, especially those
traditionally inhabited by Scheduled Tribes, and in Forest areas.
These apply in parts of Andhra Pradesh, Jharkhand, Himachal Pradesh
and elsewhere. A state subject of J&K cannot buy land in these areas,
in the same way as Indian citizens who are not the aboriginal
inhabitants of the areas mentioned in the sixth schedule cannot. So,
it is not true to state that Article 370 confers an 'exclusive' right
of any kind to anybody.
The new accord, by giving the SASB the exclusive right to manage
access to the areas under its control for the duration of the
pilgrimage, does, without any doubt, violate the fundamental right to
movement guaranteed under Article 19 (A) of the Indian Constitution.
This means, that if a shepherd were to want to graze his flock on the
prescribed route from Baltal, the SASB would be legally entitled to
prevent him from doing so, if it wished. This is what is meant by the
violation of a fundamental right to movement.
Unfortunately, Pawan Durani's effort to conflate two different rights
- rights to own land, and the right to move freely within a terrain -
in this instance, like all of his other arguments cannot but be
seen, again, as misinterpretations (at best) and misinformation and
disingenuousness (at worst)
Which means, either he does not know what he is talking about, or, he
knows but intends to deliberately mislead us all. I leave all the
readers on this list to come to their conclusions regarding this
matter, and decide whether Durani is a fool, or a charlatan. I have
come to mine.
regards,
Shuddha
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