J&K High Court Wednesday dismissed a Public Interest Litigation (PIL) by Kashmir High Court Bar Association, seeking ban on use of pellet guns as crowd control means in Kashmir.
A division bench comprising Justices Ali Muhammad Magrey andDS Thakur dismissed the petition after observing that as far as “constitutionaltort” was concerned, the government has provided ex-gratia to “most of theinjured persons.”
In 2016 the Bar had filed the PIL, seeking ban on use of thepellet guns while citing “large number of killing and injuries owing to the useof the weapon.”
Subsequently, the court dismissed the plea on 21 September2016, following which the lawyers’ body approached the Supreme Court pleadingthat the Centre had already constituted a Committee of Experts on 26 July 2016for exploring alternatives to the pellet guns.
When the matter came up for hearing on 14 December 2016before the Supreme Court, the top court observed that the pellet guns shouldnot be used “indiscriminately” for controlling street protests and beresorted to only after “proper application of mind” by theauthorities.
Last year, the Supreme Court referred the matter back to theHigh Court.
In its petition, the Bar had prayed for ban on the pelletguns, prosecution of officers of the security forces who had used pellets gunson protestors and non-protestors from 8 July 2016, compensation to the injuredpersons, etc.
In its order in 2016, the Court, while considering theprayers on banning the pellet guns, ruled that so far as the prayer for banningthe guns was concerned, as long as there was “violence by unruly mobs, use of forcewas inevitable.”
“What kind of force has to be used at the relevant point oftime or in a given situation/place has to be decided by the persons in chargeof the place where the attack is happening,” the Court had said.
With regard to the prayer of compensation, the Court todaysaid the government has fulfilled its obligation.
“We think that in the event any individual person feels thathe has not been adequately compensated for the injury he had suffered, nothingcan come in his way to claim such compensation as he may wish from the stateunder the private law in an action based on tort through a suit instituted in acourt of competent jurisdiction,” the court observed.
The court said in its jurisdiction under Article 226 of theConstitution, it cannot grant relief to the “satisfaction” of every individualallegedly injured in police action, especially when there was a findingrecorded by the Court in its 2016 order that almost every day, in the “guise ofprotests”, the security personnel, their camps and police stations were”targeted by unruly crowds”, and that, if the protest was not peaceful and thesecurity persons were attacked by huge and violent mobs, they have tonecessarily use force in their self defence and for protecting public property.
Therefore, the Court said, it was not the case wherecompensation was being sought or claimed for “wrong doing” of any securityforce personnel, or for violating any fundamental right of any citizen by them,but for discharge of public duty by the forces being “attacked by violentmobs.”
With regard to the prayer for calling expert doctors fromoutside for treatment of the pellet victims, the Court said the treatment wasextended to all the injured and some of them were referred to hospitals inother parts of the country as well, and special doctors were called fromoutside for treatment including surgeries of some pellet victims.
“Since the government has discharged its obligations,nothing needs to be done in this PIL,” the Court said while dismissing theplea.