In a very significant development, the Jammu and Kashmir High Court in a latest, landmark and extremely laudable judgment titled J&K High Court Bar Association v. Union of India & ors. in WP(C) (PIL) no. 14/2016 reserved on February 10, 2020 and pronounced on March 11, 2020 dismissed a Public Interest Litigation (PIL) that sought prohibition of use of pellet guns. How long can security forces restrain themselves if public becomes unruly and start pelting stones, bottles and what not? Why can’t the public be more disciplined and not always just shout of fundamental rights promised to them by the Constitution but also play a more responsible role like a good citizen by always complying with the fundamental duties as enshrined in the Constitution?
To start with, a two Judge Bench of the Jammu and Kashmir High Court comprising of Justice Ali Mohammad Magrey and Justice Dhiraj Singh Thakur sets the ball rolling by first and foremost listing the points made by the petitioner in para 1 which runs as follows: “This petition has been filed by the Jammu and Kashmir High Court Bar Association, Srinagar, through its Executive Member, Mr. Muhammad Ashraf Bhat, way back in July, 2016, with the following prayers:
“a) That the respondents, their agents and servants be prohibited by a writ of prohibition from using or caused to be used 12-Bore Pellet Gun and 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. The use of pellet gun be totally banned as a means of crowd control.
b) That all the officers, who took the decision of using the pellet guns at the protestors and non-protestors after 8th July, 2016 and those who actually fired the pellet guns be prosecuted. Cases be directed to be registered against them for causing unlawful bodily injury, deprivation of eye sight etc.
c) That the respondents, their agents and servants be directed to compensate all those persons whose names are mentioned in the petition as well as those whose particulars will come to the notice of this Hon’ble Court during the hearing of this petition and the compensation be determined in the context of violation of Article 21 of the Constitution as made applicable to the State of Jammu and Kashmir, as these persons have either been deprived of their eye sight and or have suffered bodily injury, trauma, agony, mental pain etc.;
d) That the Director, SKIMS, Soura, Srinagar, Principal, SKIMS, Medical College, Bemina; Director, Health Services, Kashmir, and the Medical Superintendent, SMHS Hospital be directed to furnish to this Hon’ble Court details of all those persons who reported in the SKIMS, Hospitals, District Hospitals, Sub District Hospitals, Primary Health Centres for treatment on account of pellet injury and the treatment provided to them.
e) That the State of Jammu and Kashmir through Chief Secretary be directed to furnish report to this Hon’ble Court as to the circumstances and the time decision to refer pellet injury patients outside the State was taken. The respondents be also directed to bring competent and well trained surgeons from outside the State so as to provide treatment to those who are not willing to go outside for treatment or have no means for meeting the expenses of such treatment inside or outside the State. The Court may also determine negligence, if any, caused by any authority of the State in dealing with pellet injury patients.
d) Any other appropriate writ direction or order as the Hon’ble Court may deem fit in the facts and circumstances of the case be also passed in favour of the petitioner and against the respondents.””
After hearing the learned counsel for the parties and considering the matter as pointed out in para 2, it is then brought out in para 3 that, “As per the averments made in the petition, the immediate cause for filing of this writ petition has been the unpleasant events which had occurred from 08.07.2016 wherein, according to the petitioner association, people, including teenagers, watching clashes between protestors and security forces, had received pellet injuries in their eyes, skulls and throats. It is alleged that about 4000 persons were injured and about 100 persons were blinded. The petitioner in para 7(f) of the petition has given particulars of 46 persons whose eyes, according to him, were damaged by pellet injuries. Alleging excessive use of force against protestors, the petitioner in the petition has referred to various provisions of the Code of Criminal Procedure and other procedures to be adopted for dealing with and dispersal of assemblies. The petitioner association, profusedly, espousing a public interest, has filed this petition with the above prayers.”
Most crucially, it is then laudably pointed out elegantly in para 12 that, “Having considered the matter, in view of the above, 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, cannot 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, 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.”
No doubt, each and every true Indian must be proud for what the Jammu and Kashmir High Court has held so explicitly and elegantly! How can security forces function smoothly if their hands are tied? How can public beating security forces be ever justified under the garb of “right to dissent”? Who will join security forces if the High Courts and Supreme Court justify attack on security forces, blocking of roads, burning of Constitution and national flags and chanting of pro-Pakistani slogans as “right to dissent”?
Mercifully, we see that the Jammu and Kashmir High Court Bench comprising of Justice Dhiraj Singh Thakur and Justice Ali Mohammad Magrey have commendably taken the right stand in this leading case which will send the right message to all citizens that, “You cannot on one hand spread hatred, violence and attacks and on the other hand demand that security forces just keep tolerating everything quietly without saying anything or without retaliating”!
How can attack on police station be ever justified? How can attack on security personnel and their camps be ever justified under any circumstances? How can violence by unruly crowds be ever justified?
How can they be allowed to do what they feel like doing? Have we not seen what the rioters did just recently in Delhi where more than 50 persons have died and the casualty is rising higher and higher with every passing day? Which High Court or even Supreme Court will ever try to justify it in the garb of “right to dissent”?
God help our country if ever Courts try to justify it on any ground whatsoever! Even God helps those who helps themselves! If our Courts try to justify blocking of roads under the garb of “right to dissent”, chanting of anti national slogans under this same garb and attacking our security forces and killing our police men as we saw most recently in Delhi when Head Constable Ratan Lal died of bullet injuries then we are certainly fit to be termed as a “lawless country” where everything is sought to be justified under the shameless garb of “right to dissent” just like Pakistan is fit to be termed as a “terror state” where terror groups operate with impunity with active blessings of Pakistani Army, Government and Judiciary!
Mercifully, again we have not descended to that niggardly level! This is exemplified most recently by this latest and extremely commendable judgment of the Jammu and Kashmir High Court where it has rightly refused any relief from pellet guns to those who attack police station and security forces camps! All courts must draw some lessons from this and advise people to stop justifying attacks on forces, chanting of anti national slogans and glorifying of Pakistan under any circumstances! India is India and it cannot become Pakistan ever! Pakistan split in 1971 when Bangladesh was born but India has remained united from 1947 to 2020 because we are a democratic country where people enjoy maximum freedom as my best friend Sageer Khan said way back in 1993 that, “Muslims enjoy maximum liberty in India. In Pakistan they are suppressed and that is why it split in 1971 and even now Indians who went to Pakistan in 1947 are still treated with contempt, are termed as Mohajjirs and discriminated against! Same holds true for Pashtuns, Balochis, Sindhis and people of PoK along with other regions! But in India Muslims enjoy polygamy even though it was banned among Hindus in 1955 yet Hindus never said a word. Triple talaq was banned in 1961 in Pakistan but we are still enjoying it along with Nikah Halala! Muslims enjoy all facilities in India and are allowed to become President also as also can occupy any other post and Muslim dominated Jammu and Kashmir enjoy so many rights yet they keep complaining but see how Hindus are treated in Pakistan where they have no right to life and are treated as “second grade citizens”! Muslims must learn tolerance from Hindus and treat Kashi, Ayodhya and Mathura as Hindu pilgrim sites just like we treat Mecca and Medina as Muslim pilgrim sites and never allow even a single temple anywhere not just in Mecca or Medina but in any other place in Saudi Arabia or any other Gulf country! Only then can our country become more powerful!”