J&K HC refuses to ban use of shotgun pellets

The Jammu and Kashmir high court has rejected the plea of the Kashmir Bar Council seeking a ban on the use of shotgun pellets for crowd control in the state. It also refused to entertain the plea that the officers who took the decision of using pellets and those who actually fired these be prosecuted as the same has killed, maimed and blinded several hundred people during the ongoing civil unrest in the Valley.

The court, however, directed the state government to ensure all those persons injured in the use of the weapon are provided adequate medical assistance and that, if specialists are not available in the state, appropriate arrangement be made in Jammu and Kashmir itself by inviting specialists or the patients be shifted to hospitals outside the state “wherever specialists are available”.

A division bench of the high court, comprising Chief Justice N. Paul Vasant-hakumar and Justice Ali Muhammad Magrey, while responding to the complain that excessive force has been used for crowd control in the Valley said, “Whether in a particular situation or place, the use of force is excessive or not can be ascertained only aft-er investigation and finding rendered by some aut-hority or court factually.”

It also said, “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 person(s) in-charge of the place where the attack is happening.” In the writ jurisdiction without any finding rendered by the competent forum or autho-rity, the court said it cannot decide as to whether the use of force in a particular incident is excessive or not.

The court was hearing a PIL filed by the Kashmir High Court Bar Associa-tion seeking a ban on the use of pellet guns for cro-wd control on the plea that it has not only maimed and blinded, but also killed many people during the 11-week-old unrest in the Valley and also on earlier occasions after it was intr-oduced as a “non-lethal” weapon in the state in 2010.

The PDP-BJP government had in its response told the court that the use of pellet guns for crowd control cannot be banned as the same “is not unconstitutional”. It also maintained that the courts cannot guide the law enforcing agencies to act in a particular way or manner. “The court being not an expert does not recommend as to how the law and order situations are to be controlled,” the government had said. It also asserted that “pellet gun is a modern method to deal with crowd, particularly agitating mobs who resort to heavy stone-pelting, rioting and arson at the instigation of militants and separatists”.

The court said that having regard to the prevailing ground situation and in the backdrop of the MHA having constituted a committee of experts for exploring other alternatives to pellet guns and before a decision is taken by the government on the basis of its report it is not inclined to prohibit the use of the weapon in rare and extreme situations.

With regard to the contention about non-adherence of Standard Operating Procedure (SOP), the court said: “It has to be noticed that the Director General of Police on October 25, 2010 issued the SOP which was circulated amongst the lower formations with the direction to adhere to the guidelines in letter and spirit.” It pointed out that the said SOP was framed under Section 127 to 132 CrPC read with Section 24, 32 and 33 of the J&K Police Act. Responding to the contention that SOP has not been followed while handling crowds and maintenance of law and order, the court said, “It cannot be decided in the writ petition as the DGP has in his reply specifically stated that the guidelines stated in the SOP are being strictly followed.” It also said, “Whether at a particular place the guidelines issued in the SOP are being followed or not can be individually decided and in general no one can be in a position to give a finding”.

The court placed on record the statement of the DGP and also submission made by the State’s Advocate General in the objections filed that guidelines issued in the SOP are being followed and said, “In such circumstances we are not inclined to grant the relief sought for in the writ petition with regard to prayer, and the said prayer is rejected.” Responding to the plea in the PIL that all officers, who took the decision of using the pellet guns at the protestors and non-protestors and those who actually fired the pellet guns be prosecuted, the court said: “The same cannot be considered in this writ petition as no findings of use of excessive force, violating the guidelines issued in the SOP, have been recorded by any fact finding authority Hence the persons alleging use of excessive force, due to which death or injury has occurred, can very well approach the appropriate forum to establish the same and seek redressal.”

The Court, however, also said that the pendency of the writ petition with regard to other pleas will not be a bar for the State government for paying compensation to the deserving family members of the deceased persons or to the injured persons as it may deem fit and proper. It also directed the concerned authorities to ensure all injured persons are extended adequate medical treatment and provide all possible required medical treatment to them. “If specialists are not available in the State, appropriate arrangement has to be made to treat the patients by inviting specialists in the State or to shift the patients to hospitals outside the State wherever specialists are available.”

Earlier leading lawyer Zaffar Ahmed Shah while appearing on behalf of the bar council had pleaded before that court that the SOP on crowd control is not ‘applicable’ to firing of pellets as these spread up to a diameter of six meters when fired. “The expression ‘below the knee’ is not appropriate. It is not practicable to contain pellets to knees when fired. The pellets can spread up six meters in all directions,” he had said.

He had also said that the SOP is the assumption that firearms have to be fired below knees. “In case of pellet guns, the SOP is inappropriate. Why, because pellets don’t go in a single direction and these are about 600 and spread in all directions, when fired. The diameter, when pellets, come out of the gun, is about six-meter wide. Thus, this concept that you fire it below the knees is inappropriate,” Mr. Shah had said insisting that the pellet gun is “lethal” and, therefore, the security forces should discontinue using it.

He in the backdrop of reports that the government has decided to continue to use pellet guns as well as chilly-filled PAVA grenades which were to replace the former had asked, “Are there pellet guns or PAVA shells or both now. It is to be seen whether chilli-filled PAVA shells are more dangerous, and will the government use both of them ” He had said, “As far as media reports suggest, government says it will use pellets in ‘rarest of rare’ cases. They should specifically mention whether they are using or not using the pellet guns. You compare non-lethal with lethal on what criteria One causes death and other does not. What about pellet gun ” He pleaded. “It is not a war, it is unrest. The bigger question is if lethal weaponry (should) be used in response to stone-pelting.”

In response to a query by the court that stone too can kill a person, Mr. Shah had said: “Give a single instance in the past two months where a person has died due to a stone. Police is well protected.” Referring to a similar PIL dismissed by the High Court in 2013, Mr. Shah had said that when the Court dismissed “half-hearted” petitions, it did not approve use of pellets because the expert report pertained to oleoresin grenades and not pellets.

The government in its affidavit had told the court that “pellet gun is a modern method to deal with crowd, particularly agitating mobs who resort to heavy-stone pelting, rioting, arson, at the instigation of militants and separatists with the intention of causing loss to life of police personnel and those of security forces, besides the public and private property.”

It added that the pellet gun, technically known as 12 Bore Pump Action Gun, is used to fire cartridges which contain shots (pellets) of various sizes, measured on scale BB and 1-9. “While shot marked as BB is the largest in size, shot No 1 is smaller than shot BB and Shot No. 9 is the smallest one. Depending upon the size, the number of shots in a cartridge varies,” the State’s Advocate General Jahangir Ganaie, told the court in an affidavit. It further said that while the number of shots of size cartridge would be least number of shots in a cartridge increases with the decrease in size and, accordingly, the number of shots of size 9 in a cartridge would be more. It assured the court that the pellet gun (12 Bore Pump Action Gun) is sparingly used and only when all other modes of crowd control like teargas, oleoresin grenades, stun grenades fail to yield any desired results. J&K Police is presently using Shot No 9 which is smallest in size, to deal with violent protesters and agitated unruly mobs, the government said. It claimed that the law enforcement agencies including police and security forces personnel start with lathi-charge, teargas shells, stun grenades and when these methods fail to disperse the mob, the force is proportionately increased “to prevent the unruly agitated mobs from causing further damage to the life and property of security personnel as well as peace-loving and law-abiding citizens.” It added, “When these methods fail to yield the desired results, the use of 1.2 Bore Pump Action Gun is resorted to before firing from the regular rifles. Proper drill is maintained while using force to ensure least damage to life of even members of the unruly mobs.” “Lethality or otherwise of a weapon is to be gauged by the effect of such weapon when that is put to general use, while maintaining the proper drill. Viewed thus, lathi (baton), which is a completely non-lethal weapon, can become lethal if a vital organ of a body is hit. Similarly, when 1.2 Bore Pump Action Gun is used with proper drill and while maintaining proper distance (as prescribed/ recommended), its effects are non-lethal,” the affidavit had said. The government had pleaded before the court that it should be left to the State as to how effectively control a law and order situation and that the court “cannot guide the law enforcing agencies to act in a particular way/manner”. It added, “The court being not an expert does not recommend as to how the law and order situations are to be controlled.” The affidavit further stated, “The fundamental rights do not provide for a license to take law into one’s own hands. It is only a non-violent protest march, which is a fundamental right of person. It is a settled legal position that the courts have to show deference and consideration to the recommendations of an expert committee. In this view of the matter as an expert committee is seized of the matter and having regard to the fact that the issue of use of pellet gun comes within the realm of maintaining law and order situation.”