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

[Pawan Durani]

Logic ignored !

On Mon, Sep 8, 2008 at 5:26 PM, Shuddhabrata Sengupta <shuddha at sarai.net>wrote:

> 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
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