SRINAGAR The Jammu and Kashmir High Court on Monday issued a notice to government on three clubbed petitions against the ban on civilian traffic on Sunday and Wednesday every week on highway from Baramulla in north Kashmir to Udhampur in Jammu.
One of the two petitions likened the ban announced on April 3 by States Home Department to the
Polish governments order during Nazi German occupation of Poland in December 1939, prohibiting jews from entering or using pathways, streets and public squares from 9:00 P.M. to 5:00 A.M.
Hearing the petitions filed in public interest, a division bench of Chief Justice Geeta Mital and Justice Tashi Rabastan issued the notice which was accepted by senior additional advocate general to the government B A Dar. The court directed the government to come with stand tomorrow (Tuesday) when it will again here the pleas filed by a lawyerMir Shafaqat Nazir, Shah Faesalthe former IAS officer who floated a political party earlier this year and one Raja Faisal Zahoor, a resident of Anantnag.
In all three petitions, the directions have been sought to quash the J&K Home Departments April 3 order by virtue of which no civilian traffic from Baramulla through Srinagar, Qazigund, Jawahar Tunnel, Banihal to Ramban till Udhampur from 4.00 A.M. to 5.00 P.M is barred and only government forces convoys allowed to move.
The order is unconstitutional, unreasonable and smacks of absolute arbitrariness. The order particularly falls foul of and is in derogation of Article 14, 19 and 21 of constitution of India in that it not only imposes unreasonable restriction of freedom of movement guaranteed by Article 19 but also impinges freedom of trade in an arbitrary and unreasonable manner, says Shah Faesal in his plea.
He said the order violates fundamental right Article 19 of Constitution of India right to move freely throughout the territory of India.
He said the order will badly impact employees, students, patients including critical patients, tourists and general public at large. It would amount to undeclared curfew for two days a week. Such Government Order does not seem to address its effect on masses, the miseries and inconvenience that it would cause to the general public, he said, continuing, As such, it does not stand the test of reasonableness enshrined in the Indian constitution and therefore deserves to be quashed.
Advocate Shafaqat said order by the Principal Secretary to government, Home Department, Civil Secretariat, was arbitrary and capricious.
The order is illegal and unconstitutional having been issued in violation of the rights guaranteed to the petitioner under Article 14, 19 and 21 of the constitution, he said.
Shafaqat said under Section 144 CrPC, only an executive magistrate can place restrictions on the movement of people in urgent cases of apprehended danger etc.
(Principal Secretary to government, Home) has no power or authority to pass an order placing restrictions over the movement of people. The impugned order is as such, non est in the eyes of law and deserves to be quashed, he said.
Placing blanket ban on the movement of people on a key road link amounts to imposing curfew and is comparable to the Polish Govt. order during Nazi German occupation of Poland in December, 1939 prohibiting jews from entering or using pathways, streets and public squares from 9:00 P.M. to 5:00 A.M, Shafaqat said.
He said there was no urgent requirement of passing such an illegal order when the government forces are already facilitating the smooth movement of convoys on the Highways by assistance of Road Opening Parties (ROPs) and establishment of hundreds of checkpoints. Raja Faisal Zahoor, who reffered to Fascist Nazi Regime prohibiting a particular class of citizens under the regime from entering or usage of pathways, streets and public squares, likely two others petitioners demanded immediate revocation of the ban order.
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