A two-judge bench comprising of Justice Ali Mohammad Magrey and Justice Dhiraj Singh Thakur of the High Court of Jammu & Kashmir (Srinagar bench) in the case of J&K High Court Bar Association vs. Union of India and Ors. dismissed a Public Interest Litigation (PIL) demanded an order prohibiting use of pellet guns (12-Bore Pellet Gun or of any other Bore and Cartridges containing pellets) as a means of crowd control against any group of people, including protestors in the State of Jammu and Kashmir on 11th March 2020. This was to restrict the security forces from using pelting guns to control the crowd and also to prosecute Security Force officers and personnel, who had used Pellet Guns on protestors and non-protestors and also to compensate the injured persons. The PIL was filed by the J&K High Court Bar Association through its Executive Member, Mr Muhammad Ashraf Bhat, way back in July 2016.
When this petition first came up for consideration on 02.08.2016, the learned Advocate General and the learned ASGI took notices in the open Court. After which respondent filed their respective response, the Division Bench of this court, of which Justice Magrey was member, passed on 21.9.2016.
Arguments for Prohibiting Use Of Pellet Guns
The J&K Bar Association asked the high court to prohibit the use of 12-bore pellet guns for crowd-control in J&K and order the prosecution of security personnel who had used the weapons on protesters and non-protesters.
The lawyer’s body was also seeking compensation to all those persons whose names mentioned in the petition as well as those whose particulars will come to the notice of the court during the hearing of the matter
Arguments Defending the Prohibition
In light of the response to the Petitioners filed, the learned counsel form respondent side stated “It is not in dispute that from 08.07.2016 many parts of the valley are facing law and order problems for one reason or the other. Almost every day, on the guise of protests, the Security Personnel, their Camps and Police Stations are targeted by unruly crowds.”
The State Government has passed orders u/s 144 Cr. PC restricting the movement of public and vehicles. The Educational Institutions are closed for about ten weeks which is affecting the future of students. There is shut down due to various reasons and the situation has not improved as on date. It is true that so many persons were injured due to the use of Pellet Guns or by use of force, some of them seriously. It is also true that because of the use of Pellet Guns even though more protests become violent the loss of life is less, as stated in the reply filed by respondent nos. 1, 3 and 4. The petitioner is claiming that there is a Human Rights violation. If the protest is not peaceful and the WP (C) (PIL) no. 14/2016 Security persons are attacked by a huge and violent mob they have to necessarily use force as their self-defence and for protecting public property. For dispersal of mob and maintenance of law and order detailed instructions are issued to the law enforcing agencies in the name of Standard Operation Procedure (SOP). The same was issued in terms of Section 127 to 132 Cr. P. C. as well as under Section 24, 32 and 33 of the J&K Police Act.
They also stated that the health authorities is of the view that since medical treatment has duly been extended to all the injured persons, some of whom have been referred to other hospitals in the country as well and special doctors have also been called from outside the State for treatment and conduct of surgeries of some other patients, nothing more needs to be done as regards to these prayers.
Court’s decision
Justices Dhiraj Singh Thakur and Ali Mohammad Magrey said:
“Almost every day, in the guise of protests, the security personnel, their camps and police stations were targeted by unruly crowds. If the protest is not peaceful and the security persons are attacked by huge and violent mobs, they have to necessarily use force in their self-defence and for protecting public property.”
The court held that, so far as the first and the second prayers made in the petition are concerned, the Court has already recorded a finding in its order dated 21.09.2016, particularly in paras 22 to 27 thereof and in regard with the fourth and the fifth prayers made in the petition, the concerned Hospital authorities have filed their respective responses to the petition, detailing out the number and the particulars of the injured persons who had reported at their respective Hospitals during the period in question, the nature of injuries received by them, the treatment provided to them and the procedures, wherever necessary, conducted on them.
This Court in this PIL, in its jurisdiction under Article 226 of the Constitution of India which gives the Power of High Courts to issue certain writs, cannot grant relief to the satisfaction of every such individual allegedly injured in police action, especially so when there is a finding recorded by the Court in its order dated 21.09.2016 that almost every day, in the guise of protests, the security personnel, their camps and Police Stations were targeted by unruly crowds, and that, if the protest is not peaceful and the security persons are attacked by huge and violent mobs, they have to necessarily use force in their self-defence and for protecting public property. The court further held that since medical treatment has duly been extended to all the injured persons, some of whom have been referred to other Hospitals in the country as well, and Special Doctors have also been called from outside the State for treatment and conduct surgeries of some other patients, nothing more needs to be done as regards prayers made in the petition. It further held that so far as the constitutional tort is concerned, the State has fulfilled its obligation, inasmuch as they have made ex-gratia payments to most of the injured persons as mentioned above, and with respect to the remaining it is categorically stated that their cases shall be decided in tune with the Government policy in that behalf in due course of time.
The Court further added that
“This court in the writ jurisdiction, without any finding rendered by a competent forum/authority, cannot decide whether the use of force in a particular incident is excessive or not.”
Thus the petition was dismissed accordingly.
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