A State that has accepted democracy as the form of Government for itself has to fulfill all conditions which democracy as a recognized political arrangement enjoins upon it. More importantly, when the constitution and the directive principles lay down in unambiguous terms that these rights cannot be violated, the State is duty bound to respect the constitutional priorities. Nevertheless, the constitution does not curb the powers of the State which it is obliged to use in situations of exceptional crisis. Even if a crisis situation arises, and the Government finds it unavoidable to take recourse to extreme steps in the interest of maintaining law and order in the State, it will first have to justify that a crisis situation has arisen. In political theory it is called the system of checks and balances. The Government is expected to explore all possible means of defusing a crisis situation by various means. Only when those preventive means are exhausted, do the Governments look for more stringent methodology. Generally sane and sensible Governments forestall the crisis situations just because they do not want to jump to the hard option.
Law and order situation has come under stress in Kashmir Valley since one week in the past. The institution of the authority of the State has been challenged because crowds of people have resorted to violent protests in which life and property of the people and the State have come under severe threat. In terms of the Constitution of the State and of the nation, it is the duty of the Government to restore law and order and make the flow of life smooth. We are not going into the merits and demerits of the case whether security forces/police should have or should not have used the quantum of force it used to quill lawlessness. That is purely an administrative matter falling in the realm of law and order.
However, what drags this issue into the legal arena is the imposition of certain restrictions on the movement of men and material under various provisions of the law. Imposition of these restrictions fall within the legal authority of the State as stated above. The State does not want to bypass available options that could become effective in restoring normalcy. Whether it is Section 144 or imposition of curfew in parts of the State, or other similar yet lesser compulsive restrictions, the decision lies with the administrative authority.
All this notwithstanding, the fact remains that the type of restrictions imposed on the people, have no doubt brought them many hardships. Owing to denial of movement, people are deprived of procuring some essential needs even in a state of abnormal circumstances. Eatables, like food grains, vegetables, medicines, surgical instruments, feeds for infants are among the essentials of life and people cannot be denied access to them. We know that even when two states are at war with one another, the Red Cross steps in to provide many essential goods to the wounded, sick and traumatized soldiers. That is what the nations of the world learnt from waging disastrous wars.
The Division Bench of the State High Court has taken action on a letter sent to it by an NGO requesting it to use its powers in directing the State authorities to make available some essential goods to the people to avert fatalities which could be caused by not having access to them. The court has asked the Secretaries of two departments, namely Health and Family Welfare and Consumer Affairs and Public Distribution to be physically present in the court to respond to the issue of people denied access to essential goods during a period when restrictions have been imposed on the movement of people. The Court has taken into consideration the human rights aspect of the case and thereby it has upheld the spirit of human rights enshrined in the UN Charter of Human Rights as well as the provisions of the National Human Rights Commission. If we are conceding that even a terrorist and a criminal is entitled to the enjoyment of human rights, why not ordinary citizens, children, ailing and helpless persons.
The Government has to find out some ways so that even in a situation of strict restrictions, the needy will be facilitated to have access to the sources of survival, food grains, medicines, eatables and the like. We look at this issue from humanitarian point of view and appreciate the concerns of the Division Bench in responding to the plea of ordinary citizens.
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