J&K High Court dismisses the PIL prohibiting the use of pellet guns

Brief Facts of the Case:

The 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) demanding the prohibition of the use of 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 of the Petitioner:

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 lawyers 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 of the Defendant:

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In light of the response to the Petitioners filed, the lerned counsel form respondent side stated
that- “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 use of Pellet Guns or by use of force, some of them
seriously. It is also true that because of 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 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.

The decision on the Court:

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.”

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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.