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HindustanTimes Fri,24 Oct 2014

HC dismisses Hurriyat plea for ban on pepper gas, pellet guns

Peerzada Ashiq , Hindustan Times  Srinagar, October 31, 2013
First Published: 19:20 IST(31/10/2013) | Last Updated: 19:22 IST(31/10/2013)

Refusing to ban the use of pepper gas and pellet guns in the volatile Valley, the Jammu and Kashmir high court has dismissed a bunch of public interest litigations (PILs), including the one filed by Mirwaiz Umar Farooq's Hurriyat, asking for discontinuation of these freshly introduced riot-control mechanism in Kashmir. 

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Chief justice MM Kumar and justice Ali Muhammad Magrey, while hearing PILs on Wednesday, described the petitions as "devoid of merit and out of sync with the provisions of law". 

The judges observed that three petitions filed since 2011 seeking ban on the use of pepper gas and pellet guns were filed "half-heartedly".

"These petitions styled as PILs have been filed without any empirical research and in a totally casual manner...which have no authenticity, without any supportive documentary evidence," the court noted.

In 2011, Human Rights Forum chairman Ahsan Untoo first petitioned before the State Human Rights Commission (SHRC) that the police used heavy quantity of pepper gun on November 25, 2011. The rights body cited the study of science writer Deborah Blum conducted in 2004 on pepper spray to back up the case.

There were allegations that pepper and pellet guns were responsible for several deaths in Srinagar, including a relative of JKLF chief Yasin Malik.

"Stone-throwing is nothing new here. A group of youngsters involved in stone-pelting could be dealt in a manner that would not endanger health of old, infant and pregnant women," said SHRC's justice Fida Hussain in his notice served on the commissioner secretary (home) and director general of police in 2011.

Kashmir witnessed violent street protests for three consecutive years since the Amarnath land row in 2008. Nearly 200 people, mainly youngsters, died since 2008 while countering the street protests.

The move to use non-lethal weapons in 2010 was made to decrease the casualty rate during protests following the expert committee's suggestions in New Delhi. The non-lethal weapons include Taser guns, pellets and pepper balls.

Arguing before the court, advocate general MI Qadri said there was a certificate issued by experts that Oleoresin grenades, containing 40% of capsaicinoids (CS), do not have any adverse physiological effect on human beings.

"After detonation, the maximum concentration of CS emitted by largest tear smoke munitions will not be more than 15,690 mg/m3 for a small sized room. The lethal concentration or LC50 of CS for guinea pig, which is the most sensitive animal model for such type of respiratory studies, is 35,000 mg/min/m3. Thus, the percentage of CS used in manufacture of tear smoke munitions is safe for combating law and order situations, including flushing-out operations," said the advocate general.

He also argued that the tear gas munitions are only used "to control or temporarily incapacitate crowd involved in law breaking during social unrest by inducing unbearable or harassing responses like tears, sensory irritation, suffocation, nausea, etc., which may not be considered as adverse effect".

Three advocates --- BA Misri, Mian Tufail, Nasir Qadri --- and moderate Hurriyat's Abdul Manan Bukhari had filed three separate litigations seeking ban on pepper gas and use of pellet guns in quelling protests in Kashmir.

'Hurriyat did no ground work'

"Mirwaiz's Hurriyat did not do any ground work to make the PIL against the use of pepper gas and pellet guns a successful one. I was the person who sought the attention of the State Human Rights Commission regarding the ill-effects of the use of pellet guns and pepper gas. I had done all the ground work and had mentioned the names of all the persons in the complaint that I filed before the commission," said Ahsan Untoo, chairman of the Internal Forum for Justice.

Hameeda Nayeem, a civil society member, said, "There is a need to see whether the PIL filed in the court of law was based on research or not. If the PIL was well researched then the judgment comes with a pinch of salt." 


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