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Ban on using public property –Dent on Democracy

  • Category
    Polity & Governance
  • Published
    18th Apr, 2019

The state government had notified Sunday and Wednesday for movement of security forces' convoys along the national highway between Baramulla and Jammu, saying that no civilian vehicle will be allowed to move on these two days from 4 am to 5 pm.

Issue

Context

The state government had notified Sunday and Wednesday for movement of security forces' convoys along the national highway between Baramulla and Jammu, saying that no civilian vehicle will be allowed to move on these two days from 4 am to 5 pm.

About:

The biweekly closure of the 270-km Baramulla-Srinagar-Udhampur national highway for troop movement, threw life out of gear both in Kashmir and Jammu regions. Aforementioned order was taken to facilitate movement of security forces for the LokSabha election duty. It will remain effective till May 31.

Commuters on the 161-km stretch in Kashmir, which interconnects different districts and serves as a lifeline for the landlocked Valley, had a harrowing time as civilian vehicles remained off road.

Emergency vehicles and tourists were exempted and the government deputed magistrates to ensure that those in need did not get stuck.

Analysis

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

Hearing Petitions Against Kashmir Highway Lockdown, The Jammu and Kashmir High Court observed that the Ban Can't Be 'Absolute'.

Is the order infringing upon rights?

Government explained that the 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.

However, the order is snatching precious time of a laborer to earn, a student to study and an employee to work. Who will compensate this irreparable loss?

In its observations, the division bench of Jammu and Kashmir High Court 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.

Facing criticism for closing down the national highway connecting Jammu with Srinagar, the Union Home Ministry took refuge in statistics to claim the ban was for only 15 per cent of total weekly hours.

Freedom of movement is guaranteed by the Constitution, so it is inexplicable why the Supreme Court has not yet taken note of these restrictions imposed on a section of the country’s citizens, in blatant violation of this fundamental right under Article 19.

Why is the ban necessary?

Although, the decision ofbiweekly closure was taken in the backdrop of the Pulwama terror attack but is clearly unnecessary, as visible in how it unfolded on the ground.

During the 13-hour closure from 4 am to 5 pm, under 50 security vehicles passed through the 270 km while the movement of tens of thousands of civilians was affected, but on Monday, fully fledged security convoys apparently had no problem sharing the road with civilian vehicles.

Was there a similar arrangement that existed before?

Yes, the regulations for movement of civilian traffic were already in place during convoy movement.

The current regulations have been imposed "just" for a total 15 days keeping in view the convoy efficiency and security of the personnel.

What stand has the army taken?

The Army has stated that it is not going to follow the order of the state government as it will continue to run its convoys as per the need.

Why the ban is creating polarity?

The highway passes through five of the 10 districts of the Valley, and highways to at least two more districts branch out from it. The highway, directly and indirectly, impacts a population of over 69 lakh.

While the highway would be closed on these two days, civilian traffic already faces restrictions through the week. Whenever security forces’ vehicles are using the highway, civilian traffic is often halted for various lengths of time.

This is the first time, however, that the government has ordered daylong closures every week.

In three decades of militancy, even during the early 1990s when militants often targeted convoys with IEDs and car bombs, the highway had been kept open for movement of civilian traffic.

What impact will the ban have?

  • A virtual lockdown of the Valley for two days every week.
  • Closing the highway during daytime would mean that most government and private offices, banks, schools and colleges would remain shut on Wednesdays.
  • This would seriously impair livelihood opportunities of millions.
  • Industrial units are suffering badly due to transit delay of the goods resulting in huge financial losses.
  • In case of perishable items and milk products, 100 per cent losses were reported in some consignments.
  • Another gruesome factor could the rise in inflation.
  • The mismanagement of traffic movement on the highway is resulting in considerable delay in the receipt of raw material from Kashmir and dispatch of finished products from Jammu to Kashmir, Doda, Kishtwar and other parts of the state.
  • Hoarding and black-marketing of essential commodities could throw life of people in disarray.
  • These factors will further alienate Kashmir from the mainland/mainstream.
  • A blanket ban is also against Right to life (Article 21).
  • Moreover, a highway is a public property and the government of the day is merely an administrator.
  • Before implementing the ban, ideally the administration should have consulted the civil society and factored in potential challenges.
  • In the absence of this move, the ban appears to be a unilateral move. These actions are merely supported by the people in a democracy.

Was there another tactical way out?

  • The home department of Jammu and Kashmir could have decided to move security convoys at night.
  • This could have had less impact on civilian traffic movement.
  • Essential troop and supplies movement could have taken "air - route" instead of stretching the occupancy of the critical road highway network.
  • For the future, multi-modal connectivity hold the key in correcting/ preventing such unilateral moves
  • For example, Srinagar railway project, alternate road connectivity and efficient air route can bring in better mitigation mechanisms.

Why is the situation difficult in the Valley?

  • At least seven important hospitals including three government hospitals — District Hospital Baramulla, Trauma Hospital Pattan and SKIMS Medical College Hospital at Bemina, Srinagar — are located on the national highway.
  • Two colleges, six higher secondary schools, and scores of government and private schools (including the Valley’s top ten private ones) are on the highway.
  • Almost all colleges, higher secondary institutions and schools in five districts of the Valley are accessible only through this highway.
  • There are hundreds of villages and towns spread on both sides of the highway from Udhampur to Baramulla.
  • The ban would effectively cut them off from other places on two days every week.

Why existing railway route wasn't explored

  • An eight-coach train runs between Banihal in Jammu and Baramulla in Kashmir.
  • The five-hour journey on the highway can be made in two-and-a-half hours by train.
  • However, putting security personnel and equipment on a train would have special requirements and call for extra security measures.

Learning Aid

Practice Question:

The nearly 270-km highway, the only all-weather road linking Kashmir with rest of the country, has been closed for civilian traffic twice a week from 4 am to 5 pm to facilitate smooth movement of security convoys. Critically evaluate legality of the order and explore opportunities if there is any to prevent such drastic measures.

 

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