The Jammu and Kashmir High Court, on Wednesday, dismissed a Public Interest Litigation that sought prohibition of use of pellet guns.
Jammu and Kashmir High Court Bar Association, Srinagar, had filed a PIL in 2016 seeking prohibition of use of 12-Bore Pellet Guns for crowd control in J&K 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 bench comprising Justices Ali Mohammad Magrey and Justice Dhiraj Singh Thakur made absolute the interim order passed in this case earlier declining to prohibit the use of Pellet Guns in rare and extreme situations. It had said:
It is manifest that so long as there is violence by unruly mobs, use of force is inevitable. What kind of force has to be used at the relevant point of time or in a given situation/place, has to be decided by the persons in charge of the place where the attack is happening. This Court in the writ jurisdiction without any finding rendered by the competent forum / authority cannot decide whether the use of force in particular incident is excessive or not.
On February 10, the High Court had dismissed the intervention application filed by "Association of Pellet Survivors" in the petition by observing that its was "unnecessary" as the interest of the "alleged pellet survivors" is already being pursued by the Bar Association.
About the compensation part, the bench observed that it is not a case where compensation is being sought or claimed for wrong doing of any security force personnel, or for violating any fundamental right of any citizen by them, but for discharge of public duty by such security force personnel who were being attacked by violent mobs during the relevant period. Taking note of the action taken by the Government in this regard, the bench said:
We are of the opinion 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. We think that in the event any individual person feels that he has not been adequately compensated commensurate with the injury he had suffered, nothing can come in his way to claim such compensation as he may wish from the State under the private law in an action based on tort through a suit instituted in a court of competent jurisdiction. This Court in this PIL, in its jurisdiction under Article 226 of the Constitution of India, can not grant a 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. Therefore, strictly speaking, it is not a case where compensation is being sought or claimed for wrong doing of any security force personnel, or for violating any fundamental right of any citizen by them, but for discharge of public duty by such security force personnel who were being attacked by violent mobs during the relevant period. In any case, since the Government has discharged its obligation, nothing more needs to be done in this PIL.
Notably, the President of the J&K HC Bar Association (the petitioner in the case), Mian Abdul Qayoom, has been under preventive detention since August 5.
The PIL has been on going since 2016.
Referring to various government and non-governmental data, "The Hindu" reported in June 2019 that the number of pellet victims in Kashmir since the pellet shotgun was introduced in 2010 to quell mass street protests, is likely to be between 10,000 to 20,000 persons. As per a study by 'India Spend', pellet guns have killed 24 and blinded 139 persons in Kashmir since 2010.
According to Union Home ministry, pellet guns are considered as non-lethal weapons for controlling crowd during protests.
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