Hearing Petitions Against Kashmir Highway Lockdown, HC Says Ban Can't Be 'Absolute'

A number of politicians and lawyers have filed a petition against the J&K government's decision to restrict civilian traffic on the highway on Sundays and Wednesdays.

Srinagar: The battle over the ban on civilian traffic on the Kashmir highway has moved from the streets to a court room.

On Tuesday (April 10), the Jammu and Kashmir high court issued notices to the Union ministries of defence, home affairs and transport, the National Highway Authority of India (NHAI) and the state government, directing them to respond to pleas seeking orders to scrap the ban within two weeks.

An elderly man from Anantnag, who suffers from renal failure, stuck in a car at Nowgam-Bypass in Srinagar where civilian traffic wasn’t allowed to move without “special permission”, on the day of ban on civilian vehicles on Wednesday. This elderly patient was on way to a Srinagar hospital. His son, Peer Afaq, said they were not allowed to move towards the hospital for two hours. Credit: Special arrangement

The court listed the case for hearing again on April 19, after a battery of lawyers representing the petitioners – including bureaucrat-turned-politician Shah Faesal, National Conference’s Ali Muhammad Sagar, People’s Democratic Party’s Naem Akhter and three lawyers – pleaded that the ban should be deemed “unconstitutional”. A government order has banned civilian traffic on the state’s principal highway from 4 am to 5 pm every Sunday and Wednesday.

‘How are Sunday and Wednesday unsafe and other days safe for convoy movement?’

The J&K home department order banning civilian traffic does not specify if security forces will be moving on days other than the dedicated ones. On Monday, the day after the highway was closed for civilian traffic to reserve it for army and paramilitary convoys, the army operated a convoy.

An unnamed army officer was quoted by news agency PTI as saying that during their “informal talks”, it was made clear to state officials that such an order wasn’t possible to implement.

“The local movement of security forces will inevitably be on the highway for all other non-dedicated days. It is illogical and beyond comprehension that it will be safe for the security forces to travel along with the civilian traffic on the rest of the days and unsafe on Wednesday and Sunday,” PDP’s Akhter has said in his petition.

His lawyer, Jehnagir Iqbal contended that the order “suffered from complete non-application of mind”, describing it as a “product of unreasonableness and manifest arbitrariness”.

Trucks stranded on the highway on Sunday. Credit: PTI

The former state advocate general, Iqbal, described the ban as “bad in law and invalid” arguing it has been issued by an “incompetent authority”. He said that the authority to regulate traffic on any national highway is the NHAI, as provided by the National Highway Authority of India Act, 1988, and not the state government.

The 200-km stretch of the highway, from Udhampur in Jammu to Baramulla in northern Kashmir, which has come under the ban order, is a vital stretch and dotted by hundreds of villages on either side.

The only operational road link between Kashmir and the rest of the country, the highway is described as the Valley’s lifeline. It crisscrosses through five districts – Anantnag, Pulwama, Srinagar, Budgam and Baramulla – connecting parts of Kashmir with each other.

“But the order will paralyse the whole Kashmir Valley. It is unfathomable to imagine that a road that literally breathes life into Kashmir is being put out of the bounds of the civilians,” reads the petition, adding that the order was unconstitutional and violative of the “golden triangle” of Article 14, Article 19 and Article 21 of constitution.

‘Will burying the dead also require permission?’

M.I. Qadri, another former state advocate general, who represented Sagar, said the ban order has created a “precarious situation” in the Valley.

“If a person from Baramulla, Anantnag or somewhere living on the highway suffers a heart attack, he has to approach the police and district authorities first to get permission to travel. He may get the permission, but the time consumed in fulfilling the formalities can prove fatal for him,” Qadri argued, while describing the ban as unconstitutional.

Similarly, Qadri said, if a person dies a natural death or receives a fatal injury in a road accident or by a bullet or pellet, the family, instead of mourning the death, is first required to get permission to bury the dead.

Also read: Day One of Kashmir’s Highway Lockdown Leaves Travellers Stranded, Frustration High

“Doesn’t it (the order) trample the constitution? The order is bad in law as it denied burial of a dead body which may be required to carry on the national highway…as such the burial of a citizen of the state is at the mercy of the state authorities. Will burying the dead now also require permission? Are we supposed to seek permission for even the number of mourners who will be carrying the body for burial?” argued Qadri.

He questioned the government’s explanation that total time for which traffic will not be allowed on the highway during a week was 26 hours out of total 168 hours – 15% of the total time.

“You (the government) are snatching precious time of a labourer to earn, a student to study and an employee to work. Who will compensate this irreparable loss?” he asked.

In its observations, the division bench of Chief Justice Gita Mittal and Justice Tashi Rabstan directed the state authorities to safeguard the rights of common people, observing that a commoner travelling for livelihood or for a medical emergency, or for study or some other genuine reason, has to be given free passage.

“There cannot be absolute restrictions,” the bench remarked, as the Valley today witnesses the second day of lockdown in a week.

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