In a relief to security forces operating in the union territories of J&K and Ladakh, the Division Bench of Jammu and Kashmir High Court Comprising Justice Ali Mohammad Magrey and Justice Dhiraj Singh Thakur has refused to ban the use of pellet guns for crowd control during protests in the region.
A Dvision bench of Justice Ali Mohammad Magrey and Justice Dhiraj Singh Thakur, while dismissing a PIL seeking a ban on pellet guns, said, “It is manifest that so long as there is violence by unruly mobs, the use of force is inevitable.”
“What kind of force has to be used at a relevant point of time or in a given situation and place has to be decided by the persons in charge of the place where the attack is happening,” the bench said.
It added, “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.”
DB observed that “Having regard to the ground situation prevailing as of now, and the fact that the Ministry of Home Affairs, Government of India, has already constituted a committee of experts through its memorandum dated July 26, 2016, for exploring an alternative to pellet guns; before filing of the report by the expert committee and a decision taken at the government level, we are not inclined to prohibit the use of pellet guns in rare and extreme situations,” the High Court said while dismissing the PIL.
The PIL had been filed by the Kashmir High Court Bar Association in 2016 in the wake of the mass protests following the killing of Hizb commander Burhan Wani and pellet injuries to hundreds of people in the protests that ensued.
DB observed that in our 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.JNF