Licensing competence of state


I am planning to file PIL in High Court or Supreme Court. Following matter is for discussion related to the PIL/ writ and should not be construed as legal advice for practical implementation. Following are the points, requesting views from all learned and experienced members of this forum.

 

My main logic or reasoning in the draft PIL is going to be the following -

 

(1) Arms are fundamental natural human rights recognized by the Constitution. It can be ascertained by reading Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution all read together. Because of right to equality, the State is also equally enjoying right to keep and bear arms.

 

(2) Article 19(1)(b) and Explanation I of Article 25 are explicitly acknowledging fundamental right to keep and bear arms. Article 19(1)(b) and 25 are flowing from Article 21. It means right to keep and bear arms is also embedded in Article 21. While interpreting right of self defense in Article 21, Supreme Court has held consistently in catena of judgments begining from Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244 that -

1. Right of self defense is a very valuable right
2. Right of self defense serves a social purpose
3. Right of self defense should not be construed narrowly

 

(3) It also means every legislation that in any way has implications with the right of self defense, like Arms Act 1959, it's Arms Rules and Notifications need to pass the above test laid down by Supreme Court. In other words the construction and interpretation of Arms Act 1959 and connected legislation be beneficial and harmonious in favor of Right to Keep and Bear Arms.

 

(4) Arms Act 1959 has been enacted by Parliament to give effect to this right by following Article 35 of the Constitution. Reasonable restrictions on right to keep and bear arms are already there in the form of Sections 7, 8 and 9 of Arms Act 1959.

 

(5) Parliament's competence to bring under licensing of fundamental rights including arms is limited to commercial aspects related to fundamental rights. It is incompetent to bring non commercial/ personal/ private aspects of fundamental rights under licensing. Insight into this fact is given by Article 25 of the Constitution. Reading of Article 25 tells me that -

(a) Subject to public order, morality and health and to the other provisions of Part III, the State has no power to legislate or prescribe about arms.

(b) So long arms are not any economic, financial, political or other secular activity, regulating or restricting them is not within legislative or prescripttttive competence or powers of the State.

 

(6) All Articles of the Constitution are in agreement with each other and at equal footing. Thus Article 19(1)(b) and 21 fully respect Article 25 and thus same reasoning holds good for them too.

 

(7) Article 27 further explicitly confirms that State lacks any competence to tax by licensing or without licensing, non commercial aspects of fundamental rights.

 

(8) This view is further confirmed by reading of Part XIII of the Constitution. Licensing authorities under Arms Act 1959 have been created from powers under Article 307 read along with Article 265 for purpose of taxing via licensing and regulating “trade, commerce and intercourse” i.e. commercial activity related to arms within India. Anything that is not part of commercial activity under Part XIII of the Constitution but is a fundamental right protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together, the licensing authorities have no competence or powers of taxing by licensing under Arms Act 1959. Legislative competence of Parliament for enacting Arms Act 1959 come from combined reading of Articles 35, 246 under Part XI of the Constitution for relations between the Union and the States read with entry numbers 5, 7, 41, 42, 93, 94, 96 of List I —Union List of the Seventh Schedule and Articles 302, 304, 305, 307 under Part XIII for regulating only “trade, commerce and intercourse” i.e. only commercial activity related with right to keep and bear arms within the territory of India.

 

(9) Since the acquisition or transfer of arms and ammunition includes non commercial/ private acquisition, possession or transfer, that is why their meaning in Sections 2(1)(a)&(k) of Arms Act 1959 includes borrowing, or accepting as a gift or lending, giving and parting with possession. Borrowing, or accepting as a gift or lending, giving and parting with possession are self evidently non commercial transactions. This shows that besides dealing with commercial acquisition, possession or transfer, Arms Act 1959 also recognizes non commercial or private acquisition, possession or transfer, which are beyond the licensing competence or purview of the State.

 

(10) This view is further confirmed by reading the second para of Sections 3(1) of Arms Act 1959 that -

the commercial license holder, as owner of the property i.e. firearm, has inherent personal/ private right to be a licensing authority to -

(i) issue implicit oral non commercial license to possess for carry or use of his firearm or ammunition within his presence or property, leading to enjoyment by the licensee of his inherent non commercial human right to keep, bear or use arms.

or

(ii) issue explicit written non commercial license to possess for carry or use his firearm or ammunition outside his presence or property, leading to enjoyment by the licensee of his inherent non commercial human right to keep, bear or use arms.

 

(11) This view is further confirmed by reading of Sections 5(2), 10(1)(a) of Arms Act 1959 that State is incompetent to bring under licensing of non commercial aspects related to right to keep and bear arms, like non commercial sale, purchase, import, export.

 

(12) This view is further confirmed by reading of Section 39 of Arms Act 1959, permission is required from district magistrate as a procedural safeguard to ensure no prosecution is raised under Section 3 of Arms Act 1959, to include among other things to also include, for any non commercial possession of firearms or ammunition.

 

(13) Similarly since the right to keep and bears arms is anyways a fundamental right under Part III of the Constitution, that is why under the Section 41 of Arms Act 1959, the Central Government can exempt any person or class of persons from requiring a license for the right of commercial possession of firearms in public interest.

 

(14) Similarly since the right to keep and bears arms is anyways a fundamental right under Part III of the Constitution, and Parliament lacks any competence to bring non commercial possession of firearms under licensing, that is exactly there is provision under Section 42 of Arms Act 1959 to conduct a census within the four walls of Census Act 1948. Otherwise(if all firearms can only be possesed under license) the question of conducting census does not arise.

 

(15) This view(lack of States competence to tax or license non commercial possession) is further confirmed by combined reading of Section 45(c) of Arms Act 1959, Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008 are not a result of some mistake of drafter or loophole that slipped into the law. They have been purposefully put in because it clearly means since the right to keep and bears arms is anyways a fundamental right protected by Articles 13, 14, 17, 19(1)(b), 21, 25(1), Explanation I in Article 25, 26, 27, 29(1) and 300A of the Constitution read together, and thus Parliament lacks any competence to bring non commercial/ private possession of firearms under licensing, the same is flowing into the Section 45(c) of Arms Act 1959, Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008. In other words the combined reading of Section 45(c) of Arms Act 1959, Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008 is a very brief manifestation of non commercial/ private fundamental right to possession of firearms without licensing. The enhanced protection to citizens flowing from Article 19(1)(b) in comparison to persons is also embedded in them.

 

Following is what Section 45(c) of Arms Act 1959 says:

"45. Act not to apply in certain cases.
Nothing in this Act shall apply to---
c) any weapon of an obsolete pattern or of antiquarian value or in disrepair which is not capable of being used as a Firearm either or without repair;"

As per my understanding the Arms Act 1959 does not apply, if the weapon falls in any one or more of the following three categories:

1) any weapon of an obsolete pattern

or

2) of antiquarian value

or

3) in disrepair which is not capable of being used as a Firearm either or without repair;

If my above understanding is correct then one may manufacture, sell, buy or possess matchlocks, flintlocks or similar firearms of "obsolete pattern" without any license under the Arms Act 1959. Probably cap and ball black powder revolver would also fall in the category of "any weapon of an obsolete pattern".

Rule (9)(6) of Explosives Rules 2008 says:

"Rule 9. No licence needed in certain cases.— Notwithstanding anything contained in rule 7, no licence shall be necessary for the following cases, namely :—
(6) possession by any person for his own private use and not for sale of gunpowder not exceeding five kilograms and fifty metres of safety fuse in any State other than Bihar, Kerala, Tamilnadu and West Bengal and of small arm nitro-compound not exceeding five kilograms except in the State of Kerala;"

So one may legally possess without license under the Explosives Rules 2008, gunpowder and small arm nitro-compound each not exceeding five kilograms.

Going by the Section 45(c) of Arms Act 1959 and Rule (9)(6) of Explosives Rules 2008, one can legally possess without license, weapon/s of obsolete pattern alongwith gunpowder and small arm nitro-compound each not exceeding five kilograms for target practice, shooting sports as well as self defence.

 

For deciding if a weapon is of an antiquarian value, The Antiquities and Art Treasures Act, 1972(available at http://asi.nic.in/pdf_data/8.pdf) defines what is an anquity. Any weapon that is not less than one hundred years is an anquity and thus not require license, since it is not covered under Arms Act 1959 due to Section 45(c). You have to contact the nearest office of Archaeological Survey of India to register it as antique under The Antiquities and Art Treasures Act, 1972.

 

(16) Article 358(1) makes it clear that State is clearly incompetent to derogate or violate the human right of self or private defense or it's most effective and modern means directly or indirectly under any color or pretext even under conditions of emergency. This view is further confirmed by Article 359(1)that even under conditions of emergency, State is clearly incompetent to derogate or violate the human right of self or private defense or it's most effective and modern means flowing from Article 21, directly or indirectly under any color or pretext, even under conditions of emergency. Article 359(1) also clarifies that even the other rights under Part III cannot be suspended, only the remedial enforcement of such rights may be temporarily suspended.

 

(17) The Indian Constitution and the American Constitution is based on British Common Law. Part III of Indian Constitution has been lifted from US Bill of Rights. US Supreme Court in DeShaney vs Winnebago County, 1989 and in many more judgments, has repeatedly emphasized that "the Constitution does not impose a duty on state and local governments to protect the citizens from criminal harm". Similarly the Indian Constitution does not impose a duty on State or Central goverment to protect from criminal harm, that is why citizens cannot claim compenstation of failure of State duty to protect for sufferring from violent crime. Following may also be read http://www.lawyersclubindia.com/experts/Can-victim-of-violent-crime-demand-monetary-compensation-and-penalty-be-imposed-on-State--182966.asp

The Indian State(police etc.) protects the law(the public at large) under public duty doctrine and not individuals. Under public duty doctrine, the police exists to patrol the streets and to apprehend criminals after the crime is committed and do not exist to protect individuals. That is why the Indian police is not criminally liable of neglecting duty of protecting individuals. That is why, the State through it's Parliament has officially acknowledged that it is not always possible or sufficient to provide security by government in the Section 2(f) of Private Security Agencies (Regulation) Act, 2005. That is why it says the following -

    "private security" means security provided by a person, other than a public servant, to protect or guard any person or property or both and includes provision of armoured car service;"

Section 2(f) is saying the above because the "private security" also includes the inherent right to private security provided by person to himself, his family and society. The right of "private defense" as mentioned from Sections 96 to 106 IPC is also a part of the right of "private security".

Similarly, the Section 2(g) of Private Security Agencies (Regulation) Act, 2005 tells what is a private security agency. it says the following -

    "private security agency" means a person or body of persons other than a government agency, department or organisation engaged in the business of providing private security services including training to private security guards or their supervisor or providing private security guards to any industrial or business undertaking or a company or any other person or property;"

Section 2(g) is saying the above because the private security agency includes the inherent right to free agency in every person to provide private security to himself, his family and society.

Similarly the Section 2(h) of Private Security Agencies (Regulation) Act, 2005 tells what is a private security guard. It says the following -

    "private security guard" means a person providing private security with or without arms to another person or property or both and includes a supervisor;"

Section 2(h) is saying the above because every person has inherent right be an armed private security guard to himself, his family and society.

(18) Nine judge Constitutional Bench of the Supreme Court of India, civil original jurisdiction, Writ Petition (civil) No 494 Of 2012, Justice K S Puttaswamy (retd.), and Anr. ..petitioners Vs. Union Of India And Ors. ..respondents, has agreed to the following -

    "91. In Additional District Magistrate, Jabalpur v. S.S. Shukla, (1976) 2 SCC 521, a Constitution Bench of this Court arrived at the conclusion (by majority) that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those rights altogether.

    A remarkable dissent was that of Khanna,J. 12

    The learned Judge held:

    [.............]Many modern Constitutions incorporate certain fundamental rights, including the one relating to personal freedom.

According to Blackstone, the absolute rights of Englishmen were the rights of personal security, personal liberty and private property. The American Declaration of Independence (1776) states that all men are created equal, and among their inalienable rights are life, liberty, and the pursuit of happiness. The Second Amendment to the US Constitution refers inter alia to security of person,[..............]

    92. According to us this is a correct enunciation of the law for the following reasons:

    (i) It is clear that the international covenants and declarations to which India was a party, namely, the 1948 Declaration and the 1966 Covenant both spoke of the right to life and liberty as being “inalienable”. Given the fact that this has to be read as being part of Article 21 by virtue of the judgments referred to supra, it is clear that Article 21 would, therefore, not be the sole repository of these human rights but only reflect the fact that they were “inalienable”; that they inhere in every human being by virtue of the person being a human being;

    (ii) Secondly, developments after this judgment have also made it clear that the majority judgments are no longer good law and that Khanna, J.’s dissent is the correct version of the law. Section 2(1)(d) of the Protection of Human Rights Act, 1993 recognises that the right to life, liberty, equality and dignity referable to international covenants and enforceable by Courts in India are “human rights”. And international covenants expressly state that these rights are ‘inalienable’ as they inhere in persons because they are human beings. In I.R. Coelho (supra), this Court noticed in paragraph 29 that, “The decision in ADM Jabalpur, (1976) 2 SCC 521, about the restrictive reading of the right to life and liberty stood impliedly overruled by various subsequent decisions.”, and expressly held that these rights are natural rights that inhere in human beings thus:-[................]"

In the above judgment, the nine judge Constitutional Bench of Supreme Court has clearly laid down the law that the right to personal security and private property is an inalienable human right. The gun provides personal security and is also a private property. And the Article 141 of the Constitution clearly says the following -

    "The law declared by the Supreme Court shall be binding on all courts within the territory of India."

 

Questions to the forum for discussion and views - Self defense and by extension RKBA is a natural human right. This right is embedded in various Articles of the Constitution. I don't think there is any controversy about this fact. That is why Articles 19(1)(b) and Explanation I in Article 25 are clearly acknowledging this inherent right. That is why when read with Article 14, the State is also enjoying this right to keep and bear arms. Parliament has the competence to regulate these rights for compelling State interest. Reasonable restrictions on right to keep and bear arms are already there in the form of Sections 7, 8 and 9 of Arms Act 1959. I agree. Arms Act 1959 has been enacted by Parliament to give effect to this right of RKBA by following Article 35 of the Constitution. But does Parliament have competence to reduce non commercial aspect of these rights to subject of licensing and taxation? Articles 25 and 27 are clearly telling non commercial aspects of rights cannot be taxed by license or by without licensing. Licensing authorities have been created from powers under Article 307 read with Article 265 to regulate “trade, commerce and intercourse”. Thus they lack jurisdiction to license or tax anything that is not within realm of “trade, commerce and intercourse”. Therefore I am unable to see any Parliamentary competence to reduce non commercial aspects of this right like personal or private possession of firearms to be the subject of license or tax under license. What are your thoughts?  Your views are appreciated and thanked in advance.

 
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CEO

The point is very well taken, however the State is constitutionally bound to look after law and order situations and uncontrolled possession of arms of any descripttion, under any pretext, by the citizens, tend to jeopardise the law and order situations. This possibility should be borne in mind.
 
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Sir your response is appreciated but unfortunately it does not answer the question raised in this discussion. If you please note, it is not being said that uncontrolled possession of arms ought to be done. If you read the last paragraph of my previous reply, you will find that I have already mentioned the following "Parliament has the competence to regulate these rights for compelling State interest. Reasonable restrictions on right to keep and bear arms are already there in the form of Sections 7, 8 and 9 of Arms Act 1959. I agree."

 

I reframe the question, when the Constitution is clearly saying the State lacks jurisdiction on non commercial activity related with the rights, then how can non commercial/ private/ personal activity of possession etc. of firearm be under taxation and licensing? If you note my previous reply, I have also mentioned various provisions of Arms Act 1959 and Explosives Rules 2008 that have also acknowledged this lack of jurisdiction of State. Such taxation and licensing of a right is clearly against the Constitution. If not, then from where is the State getting  competence or jurisdiction for taxation and licensing of non commercial/ private/ personal activity related to rights?

 
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Bumping this thread up so that more replies may come up for discussion.

 
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