Pellet gun use legal till rules allowing it held unconstitutional: Supreme Court

“Prayers are not to use pellet guns. In exceptional cases, police regulations permit the use of pellet guns. If you are interested in phasing out pellet guns, you will have to challenge that very provision as ultra vires to Article 21,” Justice Joymalya Bagchi, who was part of the bench, said.

The court issued a notice to the Centre and Inspector General of Police, Rapid Action Force (RAF), in pleas by Azad and two pellet injury victims seeking a ban on the use of pellet guns for crowd dispersal when dealing with civilian assemblies. The court also directed the Centre to preserve the ammunition log of the RAF personnel deployed at Jantar Mantar during the Coakroach Janta Party (CJP) protests.

The petitioners sought the decommissioning or prohibition of wholly or partly metallic kinetic projectiles, including pellets fired from pump-action rifles or projectile action guns (PAG), for crowd dispersal by law enforcement agencies during civilian assemblies.

The petitioners argued that although these guns are described as “less lethal” or “non-lethal” alternatives to firearms, firing them at close range into a large crowd can cause fatal or severe injuries, particularly to vital organs. They pointed to the injured eye of Sahil Lochab, 19, in the July 20 firing as evidence of the weapon’s brutal and grievous impact when used against civilian protestors.

They further contended that the United Nations Guidelines on Less Lethal Weapons in Law Enforcement caution against using such weapons on crowds. The guidelines also state that deploying projectile-activated guns, or pellet guns loaded with partly or wholly metallic pellets, for crowd dispersal fails the constitutional tests of “necessity, proportionality, and reasonableness”.

Police SOP

Appearing for the petitioners, Advocate Vrinda Grover said a document by the Bureau of Police Research and Development (BPRD), which prescribes the Standard Operating Procedure (SOP) for crowd control, does not include the use of pellet guns.

Justice Bagchi, however, said that the document “is a proposal”. The judge said the response starts with a declaration of a crowd as an unlawful assembly, an announcement of dispersal, and then the application of appropriate force. “One of those graded approaches includes the use of pellet guns.”

Grover said, “The document does not include (use of pellets). That is the SOP which is in operation. Pellets… may be rubber, plastic, or metal. These are metal pellets. They have been recovered from the bodies of these two young persons”.

She argued that the choice of weapon and the level of force used would have to be assessed based on the “principles of reasonableness, necessity and proportionality”, depending on the nature of the assembly.

“I am not saying whether it should be in the armoury of the Rapid Action Force (RAF) or not. If RAF is confronted by a violent mob, it may well be nobody’s case. Here it is different. They have used metallic pellets.”

Change petition

Justice Bagchi, however, reiterated that the petition seeking decommissioning of pellet guns is “vague”, until and unless the rule permitting it is declared ultra vires.

“Here, we are not averse to examining the use of pellets in a particular incident. But when you say at no stage metallic pellet can be used, you must demonstrate before us that this is (not) a permissive use as per the extant rules governing a graded response to force,” Justice Bagchi said

“Secondly, this graded response to force must clearly remove the use of pellets when graded response to force may permit in extreme cases even the use of bullets,” the judge said, adding “(allowing) the use of bullets and no use of pellets cannot be on the same plane.”

CJI Kant said the petition could seek a court order framing a protocol for what can be done in such situations.

Justice Bagchi recalled that the Calcutta High Court had once set aside “absolutely an opaque order of police regulations which said bullets must be fired at the chest in order to preserve ammunition and not at a non-vital part of the body… It was declared ultra vires Article 21.”

Solicitor General Tushar Mehta, appearing for the Centre and the Delhi Government, said it must have been a colonial-era provision.

‘Various graded responses needed’

Justice Bagchi said the petitioners must indicate to the court any provision in Delhi or elsewhere to establish “that the use of pellets appears to be an arbitrary, unreasonable and inappropriate…that it must first be by rubber pellet and only then by metallic pellets.”

Grover said there is difficulty accessing the standing orders of the BPRD to know if there is any such order permitting the use of pellet guns, as these orders are not uploaded online.

Addressing Mehta, Justice Bagchi said, “This is not right. They must be uploaded because the entire police administration needs to see the advisories of BPRD.”

Grover also urged Mehta to produce any such order if available. “If there is such a standing order, request the Union and the Delhi Government to produce it. I am sure they do not wish to fire pellets into young people who are not armed, who are protesting. Their standing order is required (for such use).”

“What the solicitor said is he is completely in agreement with the prayers…with regard to use of non-violence principle when it comes to agitation by students or persons expressing dissatisfaction over…government policies, there are also situations, When just as indicated, the question of hijacking of protests and protests which have started with a bonafide purpose become vehicles for various ulterior purposes, including situations where the hijacking is for the purpose of sabotaging the bonafide. So all these situations will require various graded responses,” Justice Bagchi said.

The judge said he had indicated earlier that the best approach was to provide protective gear to police personnel so they would have the confidence to take a few more steps before resorting to more lethal measures.

The court asked the petitioners to challenge any relevant standing orders.

It also directed the Delhi Government to provide proper medical care to those who were injured.