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Jammu accord Immoral & illegal
A. G. Noorani
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India suffers from an abject hunger of resolving political
disputes with accords after the crisis has simmered for some
time, lives have been lost and the state has shown utter
disregard for the sentiments of the people. This is India’s way
of dusting everything under the carpet. It did so with the
Sikhs by enforcing the Rajiv-Longowal Accord. It is another
story this accord with no less than the prime minister of the
country has still to see its implementation. Interestingly, the Mamta Banerjee-West Bengal government-Governor Gandhi accord is
also of a similar nature and its language hides more than tells. |
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 The accord
between the
Jammu and
Kashmir Government and the Shri Amarnathji Yatra Sangharsh Samity (SAYSS)
on 31 August 2008 is far worse than the order by the J & K
Government only three months earlier on 26 May 2008. It grants the
SASS concessions beyond what the 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 2008 by
the Cabinet in which Jammu & Kashmir were both represented. The
accord ignores completely
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 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 Article 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 then sheds 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 6C (ix) among the objectives of land user;
namely "undertaking measures relating to … preservation of ecology"
etc. Breach entails no fine.
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It is one-sided and marks an abject surrender to violence,
blockade and to communal forces. |
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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 alone vest now in the Governor. 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 which is
precisely based on misrepresentation of opinion of the deputy Chief
Minister 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 be lizzat.
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?
A. G. Noorani is
a prominent lawyer and commentator.
10 September 2008
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