*AN IMMORAL & ILLEGAL ACCORD*
* ** By A. G. NOORANI**
*
The accord bfetween the J&K 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 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 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.
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. 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 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?
--
Tapan Kumar Bose
B-10 Green park
New Delhi 110016, INDIA
Tel: +91-11-26867694 (home)
Tel: +91-11-46036051/52
Fax: +91-11-46036053
Cell: +91-9818001206
--
Bobby Kunhu http://community.eldis.org/myshkin/Blog/
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