Violence continues on the streets of Kashmir unabated and protestors are pelting stones at security forces, who have been forced to use pellet guns to disperse the rampaging mob and control the situation. The worst part is school and college going students and youth have joined protestors and are taking on the Army and the paramilitary forces with stones. Many have been blinded by pellet guns.

 

The Supreme Court has insisted in its latest observation that talks should take place to stop violence and usher in peace in the Valley. It has asked the petitioner, Jammu and Kashmir Bar Association, to talk to all stakeholders for stopping violence and report to the court with suggestions, insisting that it had an important role to play. The Bar Association had approached the Court with a petition seeking directions to the security forces to stop using pellet guns. The next hearing is on May 9.

The Court has also made it clear that it can issue instructions to stop the use of pellet guns if only violence stops and stones are not pelted.

The centre, however, has reservations on the order. It has said that the talks, if and when they take place, will be a political decision taken by the government and the courts could not intervene in this matter.

The question is—has the situation gone out of control completely for the judiciary to step in? Should the solution to the vexed issue come from the courts instead of the government? Were the security forces wrong in using pellet guns? Did they really have any other option which could have been considered? What could be the legal angle to the issue?

The recent India Legal show telecast on APN News took up the issue in detail. The panelists included Senior advocate Supreme Court Geeta Luthra, National Panthers Party leader Bhim Singh, Brigadier (retd)  and defence analyst BD Mishra, Jammu and Kashmir activist Sushil Pandit, and Member and Chairman Bar Council of UP Anil Pratap Singh, former chief justice of the Himachal Pradesh High Court, Justice VK Gupta, among others.

Sushil Pandit: “The violence in the Valley clearly reflects that a jihad is being fought on the streets of Kashmir. If you listen to the slogans carefully you will come to know (see video).”

Bhim Singh: “Unrest takes place in other parts of India as well. But why use pellet guns? These guns have been brought from Israel. They are being used in violation of fundamental rights (Article 21). Reason and arguments have lost their efficacy.”

BD Mishra: “This whole logic that pellet guns should not be used just because they are from Israel is outlandish. Was it ok if the guns would have been brought from Pakistan? Do you want the security forces to remain calm when attacked? They are being thrashed by civilians and videos have shown it explicitly. It is a shame. There is a conspiracy fuelled by ISI in Srinagar to form an Islamic state.

“You can’t ask the security forces to control the stone pelters with their hands tied,” he pointed out.

Sushil Pandit: “Bhim Singh is referring to Article 21. Are the rights applicable only for stone-pelters? What about the security forces? The rights are applicable to all citizens in this country. And anyone who takes the law into his/her hand is automatically deprived of the privileges of Article 21. Let me apprise all that the head of the Bar Association that has gone to the Supreme Court is Advocate Qayyum. He has openly said in the high court in Srinagar that he does not abide by the constitution of India and it will be torn to shreds. The judge had warned that his licence could be cancelled for this statement but he remained defiant. Still no action has been taken against the advocate.”

Anil Pratap Singh: “The Jammu and Kashmir’s approach on the issue was appropriate. As the issue was related to security and the centre had already set up a committee to look into the issue of pellet guns, it dismissed a petition on the matter. How come the Bar Association reached the Supreme Court through a PIL. The Court shouldn’t have entertained such a petition. There is no question of talks as far as the Kashmir issue is concerned and it is linked to the unity and sovereignty of India.”

“When asked if bar associations of other states will come together to condemn the action of the J&K unit, Singh said that they will do so.”

Justice VK Gupta: “One must understand that Article 21 that deals with right to life and liberty, always comes with reasonable restrictions. The security forces are fully justified in using the ‘minimal force’ to thwart any attack on them by protestors, especially if they are being hit with stones. Pellet guns fall within the ambit of using ‘minimal force’”.

Should the Supreme Court intervene in the matter and advice holding of talks? “The apex court should keep away from the matter. I also belong to J&K and have practiced law there for 30 years. I too have been a president of the Bar Association. It is a political issue to be solved by the executive only. It is outside the domain of the judiciary.”

Is the bar association within its rights to take up the issue? “The J&K Bar Association is 100 per cent identified with the movement in Kashmir. It is a dichotomous situation. On the one hand it demands independence, on the other it seeks relief from the Supreme Court of India. If any citizen of India approaches the Supreme Court, it is the constitutional obligation of the Court to entertain the petitioner and listen to the grievances.”

Sushil Pandit: “Justice Gupta’s argument is valid if the person coming to the Supreme Court is a citizen of India. But what about a lawyer (Advocate Qayyum) whose license is valid on the condition that he/she bears allegiance to the constitution of India? If he/she repudiates the constitution despite being a part of the institutional mechanism, his/her license should be cancelled and debarred from practising in any court of India. It is against the rules of the bar association as well.”

Justice VK Gupta: “I would like to point out that the rules of the Advocates Act are not totally applicable in J&K. Advocate Qayyum is not an advocate under the Advocates Act of India but under the Advocates Act of J&K. Secondly as far as adopting double standards by these people are concerned, it is our constitution that has allowed it to happen and they are making full use of it.”

Anil Pratap Singh: “As a member of the UP Bar Association, I condemn such a move by the J&K Bar Association. We would also send a letter stating the Supreme Court should not intervene in such matters. After all, Article 21 does not apply in J&K and when the state high court had already rejected the matter, the SC should have kept itself away.”

Sushil Pandit: “We are in a very dangerous situation. The anti-India forces are trying to destroy the system of this country from within. Our very democratic system is being used to destroy it. The constitution is being misused for ulterior motives. There is a clear strategy to ‘disarm’ our security forces. As far as the court’s conduct is concerned, to me it looks like a judicial overreach.”

Bhim Singh: “Supreme Court is an open court. Anybody can approach it.”

Geeta Luthra: “Anybody can come to the Supreme Court to seek clarity on Article 21. The court has raised objections to students pelting stones by leaving their classrooms. The Court is only seeking a solution. After all law and order needs to be maintained. The court has handled the sensitive issue in a very matured way.”

To know more, see the video :

https://www.youtube.com/watch?v=Ph5RGKuPk6w