Death at Kedarnath: Mule owners and their right to strike

26 Jun

Little noticed news reports in a couple of papers (here and here) indicate that the death of many pilgrims in Kedarnath may have been exacerbated by the actions of local mule owners and contractors for car parking lots in the days leading up to the heavy rains and clash floods. The local mule owners and and contractors apparently went on a strike, and prevented private chopper services from operating on June 14, 15, and 16.

Ten private helicopter services ferry pilgrims from Phata and Guptkashi to Kedarnath and back. The car park owners are located in Gaurikund, from where pilgrims walk, or ride on mules to reach Kedarnath. The helicopters were not allowed to land in Kedarnath for two days. Additionally, the mule owners also went on a strike. As a result, there was an unusually large concentration of pilgrims in Kedarnath who could not travel back. This may have contributed to the increase in loss of human life, as so many pilgrims were left stranded when the flash floods struck the region.

 

Why were the mule operators and car parking contractors striking?

As per the news report, local officials said the strike was ostensibly on grounds of “environment protection”. The actual dispute was however that the helicopter services were seen hurting the economic interests of the mule owners and contractors. Their business was suffering due to the decrease in demand for their services owing to the helicopter ferry service. The state government was able to convince these protesting groups to allow helicopter services to land only on June 16. June 16 was also when the rains and flash floods struck the region.

 

How could this have been prevented?

At one level this incident is just a story of short-sighted self interest causing the unnecessary loss of human lives. However, as vague as it sounds, developing a culture that emphasizes the protection of fundamental rights could in the long run, prevent such occurrences.

Let us for one moment keep the humanitarian tragedy to one side. On June 14 and 15, there was little indication (apart from forecasts of heavy rainfall) that a natural calamity of such magnitude would befall the region. At that point of time, the “dispute” between the mule owners and contractors on the one hand, and the helicopter service providers on the other hand was a conflict between two sets of individuals trying to protect their fundamental rights. Article 19(1)(g) of the Constitution allows all citizens the right to “practise any profession, or to carry on any occupation, trade or business”. What this means is that the state cannot take away this right from any individual.

The Supreme Court has clearly held, that since all citizens possess this right, the right of one citizen cannot be curtailed for facilitating the exercise of the Fundamental right of another person (Railway Board v. Niranjan AIR 1971 SC 966). In short, the right of the helicopter service provider cannot be curtailed to facilitate the fundamental right of the mule owner or the car park contractor. One may argue that in this case, the fundamental right of the helicopter service providers was not curtailed by the state, but by other private citizens. However, the state, by failing to protect the rights of the helicopter service providers, and by allowing the local protesters to prevent the helicopters from landing, did in fact prioritze one right over the other. The state may not have violated fundamental rights, and it may not suffer any liability for the same. However, fundamental rights were curtailed in the present case, and the state could have done more to prevent the same.

It must also be stated that while the Constitution allows people the freedom to protest, it does not allow protesters to infringe on the fundamental rights of other citizens while protesting. The mule owners and car park contractors are well within their rights to protest, but in doing so, they cannot prevent the helicopter services from operating, as that infringes on someone else’s freedom to conduct business. The Supreme Court has held that violation of the fundamental right of one individual by another individual (without the support of the state) is not considered a violation of Article 19 (Samdasani v. Central Bank of India AIR 1952 SC 59). On the face of it then, fundamental rights cannot be said to have violated as the mule owners were private operators. However, the district administration was in charge of regulating the mule service. The district administration therefore had an obligation to resolve issues faced by mule owners and also not allowed the rights of the helicopter service providers to be infringed.

Moreover, even if the state has no positive obligation to protect fundamental rights under Article 19, it does have the power to create reasonable restrictions. Sometimes, the creation of such restrictions enable the better enforcement of these fundamental rights. For example, the Supreme Court has held the following to be reasonable restrictions on fundamental rights: (a) protection of slum-dwellers against excessive rent, (b) protection of slum dwellers against eviction, and, (c) protection of debtors from excessive interest. There was thus, nothing preventing the district or state administration from interfering in the protest by the locals to impose a reasonable restriction in the interests of the general public. The state may not have violated a fundamental right by failing to do so. But it does have certain powers given to it under the Constitution, which it could have utilised to ensure the general public was not affected.

 

To be clear, I am not making the case that the state violated fundamental rights in this case. However, the state could, and should have taken a rights-based approach and made sure that helicopter ferry services were not interrupted due to the ongoing protests. If the helicopter service providers had the required permissions and clearances to ferry passengers to and fro from Kedarnath, the government should in no case have allowed local protesters to prevent such a service. It affected the rights of the service providers, and it in effect was restricting the rights of the pilgrims to enter into a contract with a service provider of their choice. While the pilgrims were held to ransom and for all practical purposes denied any means of transport, the state administration merely sent two officials to negotiate with the striking individuals. In short, the government was trying to negotiate the extraction of stranded pilgrims by locals who were acting completely illegally!

This is by no means an isolated incident. While the state routinely subverts many legitimate protests for the enforcement of fundamental rights, it also bends over backwards routinely to negotiate with misbehaving, but important constituencies. Protection of rights in such cases often takes a backseat, and every once in a while, this leads to a completely unnecessary, and tragic loss of human lives. Pilgrims, literally, be damned.

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