Shah Faesal’s petition in HC seeks quashing of highway ban order

Shah Faesal’s petition in HC seeks quashing of highway ban order
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HC issues notice to govt to file reply, another hearing expected today

Srinagar: The J&K High Court on Monday issued notice to the state government to file its reply on a petition, filed by bureaucrat-turned-politician Shah Faesal, seeking overturning of the ban on civilian traffic on the Jammu-Srinagar national highway.
A division bench of Chief Justice Gita Mittal and Justice Tashi Rabstan issued the notice through Chief Secretary, Principal Secretary Home, Divisional Commissioner Kashmir, and Director General of Police J&K.
The notice on behalf of the Home Department was accepted by Senior Additional Advocate General (AAG) BA Dar.
The court directed BA Dar to seek instructions with regard to the ban order by tomorrow (Tuesday) and the case will be likely taken up on Tuesday for further hearing.
The bench observed that the issue will be considered with regard to both security of government forces and the problems faced by common people due to the ban.
The counsels who challenged the ban order informed the court that the only national highway in Kashmir was being closed by authorities without any legal justification. They said that persons who are ill or have to travel for education or some other important reason were being left to suffer. They further submitted that there was no network of roads or options available to people of Kashmir to travel across the state.
The petition was filed under Article 226 of the Constitution of India, read with Section 103 of the Constitution of Jammu and Kashmir, in public interest by Shah Faesal through Advocates Shafkat Nazir and Raja Faisal Zahoor.
The petition stated that the Principal Secretary Home had come up with a strange, arbitrary and illegal order on April 3. It stated that the government order was unconstitutional and issued in direct violation of rights guaranteed under Articles 14, 19 and 21 of the Constitution.
“On this sole ground the writ petition deserves to be allowed and impugned order deserves to be quashed,” reads the petition.
It said that the impugned order was without jurisdiction as under Section 144 CrPC, only an Executive Magistrate could place restrictions on the movement of people in urgent cases of apprehended danger, etc.
“The Principal Secretary to Home Department has no power or authority to pass an order placing restrictions over the movement of people,” the petition said.
The petition cited reference of the Nazi regime in arguing that the order was dictatorial in nature. It stated that placing blanket ban on the movement of people on a key road amounted to imposing curfew comparable to the Polish government’s order during Nazi German occupation of Poland in December, 1939, whereby Jews were prohibited from entering or using pathways, streets and public squares from 9am to 5pm.
The petition said there was no urgent requirement of passing such an order when the security forces were already facilitating smooth movement of convoys on the highway by assistance of Road Opening Parties (ROPs) and establishment of hundreds of checkpoints.
“The right of the security forces to use of National Highway cannot supersede the right of the civilians particularly the permanent residents of State of J&K including the petitioner to use the same,” the petition filed by Advocate Shafkat Nazir said.
“While testing the impugned order on the touchstone of law and the set legal principles, the impugned order fails the test and therefore being bad in law deserves to be quashed,” the petition argued.
“The impugned order has not only the implication of violating the rights of the petitioner but also of thousands of daily commuters who need to visit Srinagar city in connection with their profession, jobs, education and more importantly, health care,” it said.
The petition also stated that the national highway was used for transporting essential supplies and used by lakhs of people in JK every day to earn their livelihood. “If these people are prohibited from using the highway, they will be deprived of their livelihood,” it said.
Advocate Nazir also suggested that if the ban order is not revoked, then Wednesdays may be declared a holiday in courts as he and other counsels may not be able to attend their cases because of the traffic restrictions.