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

[Shuddhabrata Sengupta]

Dear all,

Here is another critique of Noorani's reading of the Amarnath Accord.  
And this text is definitely pro-Accord, which it sees as the best bet  
for peace in the current conditions in Jammu and Kashmir. I am not  
necessarily in agreement with what this writer says. But am  
forwarding it, because i think it represents a difference of opinion,  
reasonably expressed. And I am always willing to respect the  
reasonable, reasoned expression of an opinion that may be contrary to  
mine.

Incidentally, it appeared today in the 'Greater Kashmir' newspaper,  
which has been roundly castigated in recent posts by Pawan Durani as  
an 'Islamist' mouthpiece. Surely an 'Islamist' propaganda sheet would  
be a little more circumspect than to publish a pro-Accord voice on  
its op-ed page.

The 'Greater Kashmir' carried both Noorani's critique, and now, this  
critique of Noorani's critique. I think that this represents fair and  
balanced practice, as should be normal in any newspaper, and  
demonstrates that newspapers like 'Greater Kashmir' and indeed  
Kashmiri fora that are broadly sympathetic to the project of the  
withdrawal of Indian forces from the disputed territory, are far more  
accommodative of diversity and difference within them, than they are  
credited for being by their critics, including several strident  
voices on this list. I hope that the next time someone forwards  
something from 'Greater Kashmir' on this list, they will restrain  
their tiring knee jerk abusive responses.

regards

Shuddha
------------------------------------------

Let’s look at the Agreement with an open mind so that masses are not  
misled, writes B. L Koul.
Greater Kashmir, Op-Ed, September 08, 2008
http://www.greaterkashmir.com/full_story.asp? 
Date=8_9_2008&ItemID=5&cat=12

The recent agreement reached between the Jammu and Kashmir Government  
panel and the Shri Amarnath Yatra Sangarash Samiti on Shri Amarnath  
land row,  has been path breaking in every sense of the word. The  
land row and the agitations that it sparked have unfortunately  
created a near regional and communal divide between Kashmir and Jammu  
regions, witnessed never before. While the common man appears to be  
by and large satisfied with the settlement, some debate has been seen  
in Kashmir media. In private talk many people in Kashmir candidly  
accept the deal as the best possible CBM in the situation. Some even  
sarcastically ask as to what jammuites actually got that unleashed  
celebrations there. But there is yet another extreme opinion calling  
the agreement as immoral and illegal and sought to create misgivings  
on the issue. Discussions are essence of a democracy and India, being  
a well bloomed democratic country guaranteed to its citizens the  
freedom of expression.

   A well known constitutional expert , Mr A G Noorani, has sought to  
raise certain issues with regard to its legality. The learned jurist  
has summarily dismissed the agreement as constitutionally invalid,  
saying that the transfer of land as per the agreement with the Samiti  
is contrary to the principles laid down by the Supreme Court of India  
in various judgments.

The judgment of the Supreme Court reported in (2008) 2-SCC page 229,  
as mentioned by a constitutional expert while substantiating his  
claim about the agreement being unconstitutional, is not relevant to  
the present case. This judgment pertains to the case titled Union of  
India versus S R Dingra and others, dealing with a specific service  
matter. The learned expert perhaps means the judgment of Supreme  
Court in the case, T N Godavarman Thirumulpad versus Union of India  
and others reported in (2008) 2-SCC-Page 222. This case pertains to  
the division of forest land by the Orissa Government for non-forest  
use like setting up of an Alumina Refinery Project. The Supreme Court  
in this judgment has observed that the Court could consider granting  
of clearance to the project only if the parties including the State  
of Orissa jointly agree to comply with certain modalities aimed at  
rehabilitation package.  In the  case of land used by Shri Amarnathji  
Shrine Board (SASB), the  land has neither been  transferred or  
diverted. It has simply been set aside for use during the Yatra  
period for creating temporary facilities for the pilgrims. The title  
as well as the possession of the land  continues with the State .  
Moreover, the use of the land by the SASB is not permanent but is  
restricted to Yatra period only. There is no tree on the said land  
which could be cleared. Therefore, the agreement between the  
Government and SAYSS does not in any way violate the Supreme Court  
judgment.

  Unfortunately, a legal luminary of the status of Mr Noorani, has  
gone to the extent of terming the agreement as an immoral and illegal  
accord, far worse than the impugned Government Order issued on May  
26, 2008, diverting about 800 kanals of land to SASB for raising  
temporary infrastructure. To prove his point he refers to the absence  
of the condition for return of the land to the forest deptt  as was  
the case in the May 26 order. What an argument? The learned author  
should care to understand that when the land is neither transferred  
nor diverted to the Shrine Board, and it continues to be with the  
State from where does the question arise for returning the land back  
to the Forest Department . In May 26 Order, the land was diverted. It  
appears that  Mr Noorani is reading the clauses of the agreement in  
isolation. It is a well settled rule of interpretation that a  
document must be read as a whole in its context. Whenever the  
question arises as to the meaning of a certain provision or a clause  
in a document in its context- the context means the statute/document  
as a whole. As laid down by the Apex Court, “to ascertain the meaning  
of a clause in a statue, the Court must look at the whole statue, at  
what precedes and at what succeeds and not merely at the clause  
itself”. Therefore, the clauses of the agreement have to be read and  
interpreted as a whole and not in isolation or each other. It is a  
fact that the words ‘exclusively’ and ‘according to Board’s  
requirements from time to time’ appear in clause A and D of the  
agreement but these expressions have to be interpreted with clause C  
which emphatically declares that the Board shall use the aforesaid  
land for the duration of the Yatra andalso clause B which clearly  
stipulates that proprietary status/ownership/title of the land shall  
not undergo any change.

  It will be mischievous if some one talk about round the year yatra  
and try to find some expression in the agreement to prove it. I think  
the people of Kashmir knows very well, if not by Mr Noorani, that it  
is an annual  pilgrimage starting on Vyas Poornima and concluding on  
the day of Sravana Poornina, which is Raksha Bandhan, hence it is  
always for  a specific period. How the author presumes it to be a  
year long event is beyond anybody’s comprehension?

  Let’s try to examine the words ‘exclusive’ and ‘the use of the land  
according to Board’s requirements from time to time’ in their right  
perspective. In the agreement, it is stated that “the State  
Government shall set aside for the use by Shri Amarnathji Shrine  
Board, exclusively, the land in Baltal and Domail (Compartment No. 63/ 
S, Sindh Forest Division) comprising an area of 800 kanals…,”   The  
word “set aside” and “exclusively” used in the Agreement underwrite  
and emphasise the commitment of the State Government   to make 800  
kanals of land available to the Shrine Board for Yatra purposes.   
This commitment relates to the period of Yatra only.  Therefore, seen  
from another perspective, land use during the Yatra period has been  
left exclusively to the Board which is mandated with the over all  
responsibility of managing the Yatra. The term            ‘Use of  
land according to Board’s requirements from time to time’ is again  
being misrepresented. It is unfortunate that misperception is sought  
to be created on two counts –first,     that the Board shall be  
allowed to use the land through out the year; and secondly, that  
according   to the Board’s requirements which may change from ‘time  
to time’ additional requirement of land may arise. Both these  
conclusions are totally ill founded. The relevant extract of the  
agreement is that “the aforesaid land shall be used according to the  
Board’s requirements, from time to time, including for the  
following……”.   The plain reading  of this extract,  together with  
the preamble  of the Agreement  which clearly  states  that the  
entire framework of action for resolving  the issues relating to use  
of land relates  to the period of Yatra only, indicates that the use  
of land is restricted to 800 kanals only and it is only the  
utilization pattern (how much of land for what purpose) that could  
undergo  a change  according to the emerging requirements  of the  
Board during the period of Yatra only.

  The public opinion is being misled by terming the agreement as  
‘unilateral’. What is this unilateral? Agitation was in Jammu for 62  
days and it had to be with people representing Jammu. Even then  
Governor had extensive discussions with the cross section of  
Kashmir’s civil society including the leaders of various political  
parties, social and religious groups, academicians, media persons and  
other sections of the society. This exercise was aimed at getting a  
precise idea of sensitivities and concerns of the Kashmir Valley.   
The idea was also to clear any lingering doubts and concerns of the  
people generated by the malicious propaganda about the land transfer  
issue. The agreement is the reiteration of the tradition in which the  
Yatra has been going on for the decades.  It also takes into  
consideration the sensitivities and concerns of the people of both  
the regions. The agreement also allays all fears and apprehensions  
about any change in the title of land besides safeguarding the  
interests of local stakeholders like ponywallas, tentwallal, petty  
shopkeepers.
  What else could be the best deal for the people of both the regions  
than this? We should mislead the people and put them on agitational  
path as we already had enough of it. Lets look at the agreement with  
open mind rather than with tainted glasses.

END