An immoral & illegal accord
by A G Noorani (in: Greater Kashmir, September 3, 2008)
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?
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