BY AG NOORANI
The accord between the Jammu and Kashmir government and
the Shri Amarnath Yatra Sangharsh Samiti (SAYSS) on August 31, 2008 is far worse
than the government’s order to transfer land to the shrine board only three
months earlier on May 26. The accord grants the SAYSS concessions beyond those
contained in the transfer order. It is one-sided and marks an abject surrender
to violence, blockade and to communal forces. The differences between the order
and the accord are glaring. Here is a list:
Ø The order was made pursuant to a decision on May 20 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.
Ø Though hotly disputed, even the controversial order did not
use the word "exclusive" anywhere. Yet the SAYSS felt so emboldened as to demand
it and threatened to wreck the deal if it was not conceded. The government
yielded in the early hours of August 31. Para 6A of the accord says that the
government "shall set aside for use by the Shri Amarnathji Shrine Board
exclusively the land in Baltal and Domail". This order is cloaked under a lie
that claims the land is "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 as dangerous both by the army and by the
Nitish Sengupta Committee report. It is also unnecessary if the limit of yatris
set by the committee report (one lakh) is observed.
Ø This violates the citizen’s fundamental right under Article
19(1)(d) of the Constitution to move freely throughout India. The demand for
exclusivity was not made either in May 2008 or in earlier decades. It is pure
communal aggression, using the yatra for political demonstration not religious
piety.
Ø The duration of use has been extended to cover both the pre
and post-yatra period. Para 6C of the accord 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 contains 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 nine measures, including
construction, setting up of sheds and shops, etc, which can be carried out
even beyond the yatra period "from time to time" and "according to the board’s
requirements", perhaps all the year round.
Ø Para 8 of the transfer order insisted that the land "shall
return" to the state. This was dropped in the accord. This accomplishes SK
Sinha’s objective – permanent use the year round.
Ø Also dropped totally is Para 4 on payment for users.
Ø Dropped too is Para 6, an undertaking of foolproof measures
against water pollution, and Para 7, on the payment of fines for any damage to
the forest. There is a pious provision contained in Para 6C(ix) of the accord,
among the objectives of land users, namely "undertaking measures relating to…
preservation of ecology", etc. Breach entails no fine.
Ø The order of May 26 was rescinded on July 1. The accord will
require a fresh order to implement it. By itself the accord has no legal force.
Section 2(a) of the Jammu and Kashmir Forest (Conservation) Act 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", alone was
revised by an amendment in 2001 and the Forest Advisory Committee’s advice
requirement was added and made mandatory. "Council of ministers" is specific. It
is different from the "Jammu and Kashmir government" whose powers 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 Committee’s advice on July 12, 2007 cannot apply to the new
accord which must be vetted afresh by that committee. It was given before the
Supreme Court’s final judgement in the TM Godavarman case on November 23, 2007
which lays down the law and makes important observations on balancing
development with protection of the environment. Failure to consider it vitiates
the decision.
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, which
includes a promise to consider compensation for lawbreakers. What of
compensation to the Kashmir valley for weeks of blockade? The parivar in Jammu
has already begun asking for more. The government has not bought peace but
trouble. It is gunah be lazzat (crime sans joy).
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?
