Upgrad LLM

objections against proposed arms rules 2015


Dear Sir/Madam,

 

The following objections and recommendations are in regards to comments solicited at http://mha.nic.in/sites/upload_files/mha/files/DraftArmsRule2015_300415.pdf

 

(1) I am not surprised to read the points in proposed Draft Arms Rules 2015. Arms Act 1959 & its Rules is a complicated and lengthy subject and one has to read it combining the Preamble of Constitution of India, relevant Articles of the Constitution from which Arms Act 1959 is flowing, Parliament's Objects and Reasons of the Bill that became Arms Act 1959, the Arms Act 1959, its Rules, Schedules and Notifications. If read separately it will be like the proverbial story of five blind men who had never seen an elephant and but had formed their own ideas about an elephant.

 

(2) While dealing with any question related to licensing, like classification of arms or persons, question of issue/ grant of license, area validity or maximum license limit or import for personal use, person to person sale of arms for personal use, etc. under Arms Act 1959 and its Rules, first of all you must understand the Articles of the Constitution from which the Parliament is deriving its legislative powers to create the licensing, conditions and the requirements for licensing, creation of licensing authorities for collecting license tax or fees and creating criminal liability for possessing arms without holding license under Arms Act 1959. And what are the barriers on the legislative powers of Parliament while doing all this.

 

(3) Legislative Powers of Parliament: Legislative competence and powers of Parliament for enacting Arms Act 1959 come from Article 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 “trade, commerce and intercourse”(hereinafter referred as commercial) within the territory of India. Licensing authorities under Arms Act 1959 have been created from powers under Article 307 for purpose of regulating commercial activity related to arms within India. Anything that is not part of commercial activity under Part XIII, the licensing authorities have no powers of licensing under Arms Act 1959. This must be understood.

 

(4) Barriers on Legislative Powers of Parliament: Article 246 read with entry number 5, 7 in List I—Union List of the Seventh Schedule provides positive legislative powers to Parliament to legislatively enable the fundamental human Right to Keep and Bear Arms(hereinafter referred as RKBA) and matters consequential and incidental to it, for example as done in Arms Act 1959. The fundamental, natural, historical, human and religious birth right of RKBA within Arms Act 1959 gets covered by Articles 13(2), 14, 15, 19(1)(b), 20(3), 21, 25, 26(b), (c) & (d), 27, 29(1), 37, 38, 39(a), (b), (c) and (d), 261(1)&(2), 300A, 301, 303 of the Constitution. RKBA is also getting manifested in the Statement of Objects and Reasons of the Parliamentary Bill that became Arms Act 1959 and various provisions of Arms Act 1959. The Statement of Objects and Reasons of the Parliamentary Bill that became Arms Act 1959 can be read in Gazette of India(Extraordinary), 20-2-1959, Part II - Section-2, Page 107. It can also be read in the judgment for Ganesh Chandra Bhatt vs District Magistrate, Almora And ... on 12 March, 1993, by Hon'ble Justice Markande Katju in Allahabad High Court (http://indiankanoon.org/doc/1567364/)

 

(5) It is a well settled matter of law what is necessary is lawful. As a consequence, RKBA is embedded in Articles 19(1)(b), 21, 25, 26, 27, 29(1), 300A, the same is reflecting in Articles 51A(b)(c),(d) & (i) and the same is flowing into the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964, Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code and Sections 96 to 106 IPC as citizen's militia for law enforcement in personal capacity and control. RKBA is also embedded and reflecting in the Civil Defense Act 1968.

 

(6) It needs to be noted and understood that RKBA is an inalienable fundamental, natural, ancient, historical, human and religious birth right that is part and parcel of the Common Law. It cannot be surrendered either individually or by any compact of society. It is a well settled matter that Fundamental laws of the Indian Constitution are based on British Common Law. The Constitution has acknowledged the British Common Law in at least Articles 25(2), 35(b), 367(1), 372 and 374. Thus neither is the Constituent Assembly nor the Constitution competent to derogate or extinguish an inalienable fundamental, natural, ancient, historical, human and religious birth right of RKBA.

 

(7) Anything that is not commercial activity, Parliament, including the licensing authorities created by Parliament under Article 307, do not have power of licensing under Arms Act 1959 or its Rules. Such lack of powers are because implied licenses(rather fundamental rights) have already been guaranteed by Part III of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. Since bringing in or out of country for private use is not commercial activity, no import or export license is needed under Section 10(1)a of Arms Act 1959. It also means that it is part of freedoms and liberties under Part III of the Constitution and thus Parliament does not have legislative competence to bring them under any enactments or regulations whatsoever. Similarly Section 13(3)(a) of Arms Act 1959 is talking of implied licenses for citizens(provided not offending Sections 9 and 14) because Article 19(1)(b) has clearly and explicitly acknowledged arms as fundamental right of citizens. That is also why Sections 39, 41, 42, 45 exist. Section 13(3)(b) of Arms Act is talking about express licenses for commercial activity of persons(citizens, non citizens, including legal entities/ legal fictional persons like body corporates, companies, organizations etc.) within the confines of Part XIII of the Constitution.


(8) Arms Rules 1962 have been created to administer express licenses for commercial activity only. That is why Section 10(1)(a) of Arms Act 1959 does not get manifested anywhere in Arms Rules 1962, because no rules can be prescribed, no license tax or fee can be charged for something not commercial under Part XIII of the Constitution. Similarly Section 13(3)(a) of Arms Act 1959 is talking of citizen's fundamental right under Article 19(1)(b), that is why nowhere in Arms Rules 1962 is talking of this citizen's right. Because it is implied license for citizens in matters non commercial. By no stretch of imagination, self protection or recreational sports shooting can be commercial activity and thus no procedure has been or can be laid down in Arms Rules 1962. No fees or license tax can be charged for something that is not commercial. Please read Rule 51 of Arms Rules 1962, it has no mention of self protection or sport. Why? Because no rules can be prescribed, no license tax or fee can be charged and it is implied license(rather citizen's right under Part III) and not express license. Since possession of arms, firearms or ammunition that are self made, home made or country made for non commercial purpose are fundamental right of citizens, that is why there is provision of acquisition and possession of country made weapons by bona fide tourists under entry 23 of Schedule II of Arms Rules 1962.

 

(9) It is well settled matter of law when the foundation fails, all fails. The Constitution is the foundation of all statutory laws. In order to prevent the foundation from failing, the Ministry of Home Affairs must understand the specific provisions of Constitution relevant to Arms Act 1959 mentioned below -

 

Article 19(1)(b) is saying it is a citizen's fundamental right: “to assemble peaceably and without arms;” only and only because there exists a fundamental right to assemble peaceably and with arms embedded in it. This must be understood.

 

(10) It is a matter of settled law whenever any issue arises which calls for an "interpretation of statutes" or where a word requires interpretation, the word is known by the company it keeps. It is clear and self evident the word "and" in company of Clause 1 of Article 19 has been used to join two negative rights. These combination of rights are preferred but Constitution is not offended by any other combination of any other fundamental rights. Since the rights in Article 19 are negative rights, one combination is freedom of speech and with expression and the other combination is freedom of speech and without expression. Similarly right to assemble peaceably and without arms has another combination embedded in Article 19. It is to the right to assemble peaceably and with arms. Someone may ask why the right to assemble peaceably and with arms has not been explicitly enumerated in Part III? It is because of volatile experiences of 1947 were fresh in the memory of members of the Constituent Assembly, the concern of the Constituent Assembly was to avoid cases of display of arms in terrorem populi. That is why in order to avoid cases of display of arms in terrorem populi, peaceable assembly without arms is preferred mode of combination of rights under Article 19. This does not by any stretch of imagination mean that combination of right of peaceable assembly with arms does not exist. This gets clearly illustrated after reading below:

 

(11) Fundamental rights and fundamental duties are two sides of the same coin. Since fundamental right to assemble peaceably and with arms and citizen's militia in personal capacity and control is embedded and exists for citizens under Article 19, that is why there exists corresponding reflection of fundamental duty of citizen's militia in personal capacity and control, under Articles 51A(b)(c),(d) & (i) and it also gets manifested under the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964. Under these acts, in order to do patrolling, able-bodied male inhabitants exercise two fundamental rights, right to assemble (peaceably as well as violently if situation compels) and the RKBA. The RKBA is also embedded in Civil Defense Act 1968. The natural and human right of RKBA and police powers, both individually and as an assemblage is also embedded in Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code and Sections 96 to 106 IPC flowing from Article 21 as citizen's militia in personal capacity and control. RKBA is also getting manifested in a detailed manner in Article 246 read with entry number 5 in List I—Union List of the Seventh Schedule.

 

(12) Thus it is very clearly self evident that arms are recognized as fundamental right by the Constitution under Articles 19 and 21. Though it is very clearly self evident and no ambiguity exists, to put any doubts at rest, it is important to mention Justice Vivian Bose in Krishna v. State of Madras, 1951 SCR 621 stated: “When there is ambiguity or doubt the construction of any clause in the chapter on Fundamental Rights, it is our duty to resolve it in favour of the freedoms so solemnly stressed.”

 

(13) Now having understood RKBA is clearly part and parcel of Articles 19 and 21, the Ministry of Home Affairs must understand Articles 25(1), 25(2)(a) and Explanation I in Article 25. They are quoted below -

 

25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

 

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

 

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.”

 

(14) The word kirpan is made from two words “Kirpa” (mercy, grace or kindness) and “Aan” (dignity/ honor). Thus kirpan has wide and substantial meaning, it means “one that has grace to protect the honor” of self, family, home and others. It has been well settled by Hon'ble Supreme Court in various judgments that dignity and the means to defend dignity are part and parcel of Article 21 and Right of Private Defence in the Indian Penal Code. Thus kirpan is for serving very important practical and substantial purpose of individual forming part of the militia protecting life and liberty in individual capacity and control. Kirpan is an invented word to represent any weapon of the day that produces the desired result of protecting dignity and honor. In India during 1600s and up to around middle of 1800s, mostly the guns in use were muzzle loading matchlocks. They could only be fired by first loading gunpowder and lead shot from the muzzle end and then touching the end of a burning string or rope with touch hole to ignite gunpowder. Thus they were clumsy, inaccurate, time consuming and one could not always keep a burning string always ready. That is why due to ready dependability, the kirpan came to be associated with sword and not gun. Modern day kirpan is the gun of the latest type and pattern. Every knowledgeable Sikh or reasonable person will agree. This view also gets confirmation from ancient and religious texts of the Sikhs. Following verses are quoted below from their religious scripttures:

 

As kirpan khando kharag tupak tabar aru tir

Saif sarohi saihthi, yahai hamarai pir:”

 

(15) In English the above means “The sword, the sabre, the scimitar, the gun, the battle axe, the arrow. The rapier, the dagger, the spear: these indeed are our saints.” These were the most effective, latest and substantial arms of those times. It also means that any and all these weapons, including the latest type and pattern of guns are on equal footing for religion, law and justice. It is well settled matter of law that rights never die and where two rights concur, the more ancient shall be preferred. This establishes that possession and use for all lawful purposes, of all kinds of most effective and latest arms are ancient, natural, human and religious fundamental rights of the people of India for defense of their self, their near and dear ones, their State, and the State has no legislative or prescripttive power over these. These are the sovereign rights of a sovereign people who have created a sovereign State.

 

(16) It is a well settled matter of law what is good and equal, is the law of laws. This applies to Article 25 as well. It is also well settled matter of law and there is no controversy that kirpans are arms. In other words the Articles 13, 14, 15, 19(1)(b), 21, 25(1), 25(2)(a), Explanation I in Article 25, 26, 27, 29(1) and 300A, all read together have clearly acknowledged that equally for all, regardless of their religion 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 prescripttive powers of the State.

 

(c) Since because of above two reasons, arms are not commercial for Part XIII of the Constitution, kirpans are arms that are beyond the licensing or prescripttive powers of the State, that is why the Central Ministry of Home Affairs has issued Gazette Notification G.S.R. 991, dated 13 th July, 1962 excluding kirpans possessed or carried by Sikhs from licensing under Section 4 of Arms Act 1959, similarly khukris possessed or carried by Gurkhas of all classes are excluded from licensing of Section 4 of Arms Act 1959.

 

(17) As per Article 13(3)(a) law includes any custom or usage. Article 13(3)(a) read with Articles 14, 15, 19(1)(b), 21, 25, 26, 27, 29(1), 300A shows that arms(includes firearms, ammunition and explosives) which are part of custom or usage are lawful. Also because they are not commercial under Part XIII of Constitution. In other words they are freedoms and liberties under Part III of the Constitution which the State cannot touch.

 

(18) From all the above mentioned reasons, implicit licenses(rather fundamental rights) "by operation of law" flowing from Articles 13, 14, 15, 19(1)(b), 21, 25(1), 25(2)(a), Explanation I in Article 25, 26, 27, 29(1) and 300A go into Sections 3, 4, specifically Sections 10(1)(a) and 13(3)(a) of Arms Act 1959, that is why there is Section 42 of Arms Act 1959 for conducting census of firearms and it needs to be conducted within four walls of Census Act 1948. It needs to be noted that the concept of licensing for citizens in Sections 3, 4 and 13(3)(a) of Arms Act 1959 is on baseless, flimsy, shaky and weak grounds since anything that is not commercial under Part XIII of the Constitution but a right under Part III cannot be matter of licesning or prescripttion by the State.

 

(19) Arms Rules have been created to administer express licenses for commercial activity only. Section 10(1)(a) of Arms Act 1959 does not get manifested anywhere in Arms Rules 1962 because no rules can be prescribed, no license tax or fee can be charged for something not commercial under Part XIII of the Constitution. Similarly Arms Act, Section 13(3)(a) is talking of citizen's right, that is why nowhere in Arms Rules 1962 is talking of citizen's right. Because it is implied license for citizens in matters not commercial. Self protection or recreational sports shooting is not commercial activity and thus no procedure has been or can be laid down in Arms Rules. No fees or license tax can be charged for something that is not commercial for purpose of Part XIII of the Constitution. Please read Rule 51 of Arms Rules 1962, it has no mention of self protection or sport. Why? Because no rules can be prescribed, no license tax or fee can be charged and it is implied license(rather citizen's right under Part III) and not express license.

 

(20) It is pertinent to note that the essence of this very fact that Constitutionally guaranteed fundamental right of RKBA has been clandestinely subverted, had been conveyed by 108 Members of Parliament in their letter to the Prime Minister.

 

(21) Now I shall answer each point in your Draft Arms Rules 2015 noted above.

 

(a) The Law: The Arms Act 1959 & it's Rules are fine. Except some minor amendments to make them in conformity with the fundamental right of RKBA in the Part III of the Constitution, no major change is required. The power of licensing of the licensing authorities under Arms Act 1959 is limited to only that is commercial activity under Part XIII of the Constitution. Anything that is right of RKBA under Part III cannot be matter of licesning under Arms Act 1959. This must be made very clear in Arms Act 1959 and its Rules. Only the prohibited arms and ammunition as described in Section 2(1)(h)&(i) can be restricted in the least restrictive manner but can never be made a subject of licensing or arbitrariness or vagaries of Notifications by the Executive. Accordingly Sections 2(1)(h)&(i) and 7 must be amended. Section 3 of Arms Act 1959 read with its Section 4 makes it very clear that Section 3 is discriminatory, self incriminatory and violating Article 20(3). Since Articles 20 and 21 are directly connected with laws higher than the Constitution itself, even the President, even during emergency, is incompetent to order suspension of enforcement of rights under Articles 20 and 21 using Article 359(1). In other words it can be said that Articles 20 and 21 are also the grundnorms or foundations of the Constitution, the bases of these are not open to question. As already mentioned earlier it is well settled matter of law when the foundation fails, all fails. In order to prevent the foundation from failing, Section 3 of Arms Act 1959 must be amended so that it does not offend Article 20(3) of the Constitution. For better and detailed understanding of this matter one may read the judgment of U.S. Supreme Court judgment in Haynes v. United States, 390 U.S. 85 (1968). The judgment can be read at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=390&invol=85

 

(b) RULE 2. (N) Page 2 (page 15 of pdf file) It cannot apply to citizens for any firearms or ammunition not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made, home made for non commercial purpose. It would offend the Constitution, is ultra vires of Arms Act 1959 and be struck down by courts.

 

Recommendation: This proposed rule is superfluous, has no justification and must be deleted.

 

(c) RULE 10. Page 10 (page 23 of pdf file) It cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. It would offend the Constitution, is ultra vires of Arms Act 1959 and be struck down by courts.

 

Recommendation: It must clearly mention that it is only for commercial activity of authorized shooting clubs and state rifle associations that run on subscripttion from members. The State cannot impose such rules without providing agencies and infrastructure for the same. It somehow appears this has been not given thought OR has been introduced solely to be used as an excuse for denying licences. This will lead to further corruption and/ or create a “parallel licensing system” wherein if a few institutions/ persons are allowed to be designated as “accredited” they may start charging extortionate fees for the purpose of issuing such certificates.

 

Application of this rule must be made conditional to the local administration providing adequate infrastructure and personnel for providing such training. Till such time as they are able to do so, this rule must be kept in abeyance. It is suggested that all serving and former military personnel be exempted from this training requirement by virtue of their military experience. Furthermore, all ex-military personnel of the rank of Havildar(sergeant) and above be automatically recognised as “accredited trainers”, this would provide a ready pool of knowledgeable trainers who can be recruited for this purpose as well as provide gainful employment to lakhs of ex-servicemen who have bravely defended our frontiers while in service. It is also suggested that all police ranges be made available to civilians for such training/ general practice on 2 or more designated days every week.

 

(d) RULE 11. (E) (C) Page 11 (page 24 of pdf file) It cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. It would offend the Constitution, is ultra vires of Arms Act 1959 and be struck down by courts.

 

Recommendation: It must clearly mention that it is only for licenses for commercial activity. All lawful and legal proofs will have to be accepted.

 

(e) RULE 11. (E)(E) Page 12 (page 25 of pdf) It cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. It would offend the Constitution, is ultra vires of Arms Act 1959 and be struck down by courts.

 

Myth: “Safe storage” laws protect people

 

Fact: 15 states in U.S.A. that passed “safe storage” laws saw 300 more murders, 3,860 more rapes, 24,650 more robberies, and over 25,000 more aggravated assaults in the first five years. On average, the annual costs borne by victims averaged over $2.6 billion as a result of lost productivity, out-of-pocket expenses, medical bills, and property losses. As per Prof. John Lott, Yale School of Law in his book Safe Storage Gun Laws: Accidental Deaths, Suicides, and Crime, March 2000 "The problem is, you see no decrease in either juvenile accidental gun deaths or suicides when such laws are enacted, but you do see an increase in crime rates."

 

Fact: Only five American children under the age of 10 died of accidents involving handguns in 1997. Thus, the need for “safe storage” laws appears to be very low and unjustified.

 

Fact: In Merced California, an intruder stabbed three children to death with a pitchfork. The oldest child had been trained by her father in firearms use, but could not save her siblings from the attacker because the gun was locked away to comply with the state’s “safe storage” law.

 

Recommendation: It is best to be deleted. If it is to be retained, it must clearly mention that it is only for licenses for commercial activity. It must also clearly state that one can “self-certify” safe storage and the requirement for safe handling certificate must be made conditional to such facilities being locally provided by the local administration.

 

(f) RULE 11 (E)(F) Page 12 (page 25 of pdf) It cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. It would offend the Constitution, is ultra vires of Arms Act 1959 and be struck down by courts. Even for licenses for commercial activity it would offend various provisions of Constitution including Part III and Directive Principles of State Policy.

 

Recommendation: This proposed rule must be deleted.

 

(g) RULE 11 (E) (G) Page 12 (page 25 of pdf) It cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. It would offend the Constitution, is ultra vires of Arms Act 1959 and be struck down by courts. Fundamental rights or due process of law are not subject to recommendation of two persons of good social standing or even recommendation of all the persons in India. Constitution has taken the burden of recommendation for all citizens on itself by guaranteeing the fundamental rights.

 

Recommendation: This proposed rule must be deleted.

 

(h) RULE 12 (2) & 12 (3) Page 13-14 (page 26-27 of pdf), Page 14-15 (page 27-28 of pdf) Please refer paragraphs numbered (17), (18) and (19) of this document. Possession of all kind of arms is every citizen's Fundamental right under Part III, Constitutional right as well as right to indulge in every commercial activity related to arms under Part XIII of the Constitution. Non of the fundamental rights of RKBA can ever be prohibited. Only the prohibited arms and ammunition as described in Section 2(1)(h)&(i) can be restricted but can never be made a subject of licensing. That is exactly why Arms Act 1959 has been enacted. It is matter of settled law that rights are broadest in amplitude and powers are narrowest. Using this fact of settled law, a cursory reading of Section 13(3)(a) of Arms Act 1959 makes it very clear, it is every citizen's right to possess all kinds of firearms(including the so called proposed restricted and permissible categories) for all lawful purposes, and is not just limited to only “smooth bore gun having a barrel of not less than twenty inches in length”. The Section 13(3)(a) of Arms Act 1959 has to be strictly followed for every citizen. This right is flowing from Article 19, if regrettably it needs to is to be restricted or denied, it has to be restricted or denied only as per due process of law following the doctrine of strict scrutiny in narrowest possible limits. The due process of law for denial has been clearly laid down in Sections 9 and 14 of Arms Act 1959. It has to be followed.

 

Recommendation: These proposed rules must be deleted.

 

The Ministry of Home Affairs must send Notices to every licensing authority educating them about the lawful meaning of Section 13(3)(a) of Arms Act 1959 includes every citizen's fundamental right to possess every kind of firearms under Arms Act 1959.

 

In pursuance of meeting the Parliamentary Objects and Reasons of Arms Act 1959, its Sections 9, 14, 17 and Parliamentary mandate of Sections 4(2), (3) & (4) of the Right to Information Act, 2005, every licensing authority must publicly publish the account details of licensing authority so that license fees can be directly deposited in that account either in cash, cheque, demand draft, pay order or online using net-banking or credit or debit card, maintain an updated list of persons affected by Sections 9, 14 and 17 of Arms Act 1959. This will help arms license applicants for commercial activity as well as licensing authorities a lot, and also reduce lot of needless burden on already overburdened and over stretched police force of every State in the country.

 

The proposed RULES 12 (2) & 12 (3) have no lawful basis, are based on some wild fantasy and imagination of some ignorant mind, are unlawful, ultra vires of the Constitution as well as clearly ultra vires of Arms Act 1959. They would be struck down by courts.

 

(i) RULE 18 Page 19 (page 32 of pdf) As already mentioned possession of all kind of arms is every citizen's Fundamental right under Part III, Constitutional right as well. It cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. It would offend the Constitution and be struck down by courts. Even for licenses for commercial activity it would offend various provisions of Constitution including Part III, Directive Principles of State Policy, Articles 261(1)&(2) and Part XIII. It is not the applicant but the State is under immense burden to justify denial of any license including the area validity, that is why Section 14(3) of Arms Act 1959 makes it mandatory for licensing authority to give in writing the reason for refusal so that matter can be taken to High Court or Supreme Court.

 

Recommendation: This proposed rule must be deleted. The Schedule II of Arms Rules 1962 must be amended in a manner, so that any license issued by any licensing authority, any where in India, has all India validity, unless there is a clear, compelling and justifiable reason to the contrary.

 

(j) RULE 19 Page 19-20 (page 32-33 of pdf) It cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. It would offend the Constitution, is ultra vires of Arms Act 1959 and be struck down by courts. Even for licenses for commercial activity it would offend various provisions of Constitution including Part III and Directive Principles of State Policy and Arms Act 1959.

 

Recommendation: This proposed rule must be deleted.

 

(k) RULE 22 Page 22 (page 35 of pdf) It cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. It would offend the Constitution, is ultra vires of Arms Act 1959 and be struck down by courts. Any concept of quota for ammunition has no justification whatsoever, the quantity is arbitrary, unreasonable, based on some wild figment of imagination. It is pertinent to note the answer of Ministry of Home Affairs given in Lok Sabha to unstarred question no 808(f), answered on 14.08.2012. The answer was that the NSG Commandos are carrying out weekly firing practice of 90 rounds with their primary/secondary weapons at Manesar as well as Mumbai Hub. This can be ascertained by visiting the Lok Sabha website at http://164.100.47.132/LssNew/psearch/QResult15.aspx?qref=125740 The freedoms, liberties and value of life of every citizen is equal under the Constitution. These rights are not subject to any imaginary or perceived threat or caprices or fancies of the State. There is no reason why any citizen should not practice firing at very least 90 rounds or more per week for sport, for defense of his self, his family and near and dear ones. If the State wants to deny or restrict this right, it is under immense burden to justify denial.

 

Recommendation: This proposed rule must be deleted. Any quota system in Arms Rules 1962 must be deleted too.

 

(l) RULE 23 (2) Page 22 (page 35 of pdf) Needless to say it cannot apply to citizens for any firearms or ammunition not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. It would only apply for licenses for commercial activity.

 

Recommendation: Few Licensing Authorities have enough infrastructure and manpower to deal with renewals. This will increase their work load and render a licence invalid and directly affect the licensee. This will also lead to harassment of the licensee and corruption in government offices. The Arms Act Section 15 needs to be amended. In Section 15, sub-section (1) the words “A license under Section 3 shall, unless revoked earlier, continue in force for a period of three years from the date on which it is granted”. Since it cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution, it must be amended to reflect the same.

 

In pursuance of meeting the Parliamentary Objects and Reasons of Arms Act 1959, its Sections 9 and 14, and Parliamentary mandate of Sections 4(2), (3) & (4) of the Right to Information Act, 2005, every licensing authority must publicly publish the account details of licensing authority so that license fees can be directly deposited in that account either in cash, cheque, demand draft, pay order or online using net-banking or credit or debit card, maintain an updated list of persons affected by Sections 9, 14 and 17 of Arms Act 1959. This will help arms license applicants for commercial activity as well as licensing authorities a lot, and also reduce lot of needless burden on already overburdened and over stretched police force of every State in the country.

 

(m) RULE 25 Page 24 (page 37 of pdf) At the most it would only apply for licenses for commercial activity. Needless to say this rule or NDAL cannot apply to citizens for any firearms not part of commercial activity under Part XIII of the Constitution. It includes firearms or ammunition that are self made or home made for non commercial purpose. Since firearms are matter of fundamental rights of citizens and government must not know or track the personally identifiable details, that is why there is provision of taking census of firearms under Section 42 of Arms Act 1959. It needs to be conducted with four walls of Census Act 1948. NDAL will defeat the very purpose of Section 42 of Arms Act 1959. Also it has grave national security implications. There is enough historical evidence in various wars of many countries, to finish resistance, the hostile forces simply seized the municipal gun registers to confiscate all guns from citizens. This must be avoided at all costs and that is why Section 42 is talking of census and not some centralized database.

 

It is a myth that gun databases serve some useful purpose in controlling crime.

 

Fact: Not in California. California has had handgun registration since 1909 and it has not had any impact on violent crime rate.

 

Fact: Not in New Zealand. They repealed their gun registration law in the 1980s after police acknowledged its worthlessness.

 

Fact: Not in Australia. One report states, “It seems just to be an elaborate system of arithmetic with no tangible aim. Probably, and with the best of intentions, it may have been thought, that if it were known what firearms each individual in Victoria owned, some form of control may be exercised, and those who were guilty of criminal misuse could be readily identified. This is a fallacy, and has been proven not to be the case.” In addition, cost to Australian taxpayers exceeded $200 million annually.

 

Fact: Not in Canada. More than 20,000 Canadian gun-owners have publicly refused to register their firearms. Many others (as many as 300,000 368 ) are silently ignoring the law.

 

• The provincial governments of Alberta, Saskatchewan, and Manitoba have dumped both the administration and the enforcement of all federal gun-control laws right back into Ottawa's lap, throwing the Canadian government into a paper civil war.

 

• And all at a cost more than 1,646% the original projected cost (the original cost was estimated at 5% of all police expenditures in Canada). "The gun registry as it sits right now is causing law abiding citizens to register their guns but it does nothing to take one illegal gun off the street or to increase any type of penalty for anybody that violates any part of the legislation," according to Al Koenig, President, Calgary Police Association. "We have an ongoing gun crisis, including firearms-related homicides lately in Toronto, and a law registering firearms has neither deterred these crimes nor helped us solve any of them," according to Toronto police Chief Julian Fantino .

 

• The system is so bad that six Canadian provinces (British Columbia, Manitoba, Saskatchewan, Alberta, Nova Scotia, and Ontario) are refusing to prosecute firearm owners who fail to register.

 

• A bill to abolish the registry has been tabled (introduced) in the Canadian Parliament, which if passed, would eliminate the registry completely. The long gun registry has already been abolished. Registration records for seven million ordinary long guns are to be destroyed. Registry was destroyed because the majority of Canadians have concluded that the registry was a colossal waste of money, of no value in crime control, and a pointless invasion of privacy.

 

• A Saskatchewan MP who endorsed the long gun registry when first proposed had introduced legislation to abolish it stating that, “[the registry] has not saved one life in Canada, and it has been a financial sinkhole … absolutely useless in helping locate the 255,000 people who have been prohibited from owning firearms by the courts.”

 

Fact: Not in Germany. The Federal Republic of Germany began comprehensive gun registration in 1972. The government estimated that between 17,000,000 and 20,000,000 guns were to be registered, but only 3,200,000 surfaced, leaving 80% unaccounted for.

 

Fact: Not in Boston, Cleveland, or California. These cities and state require registration of “assault weapons.” The compliance rate in Boston and Cleveland is about 1%.

 

Fact: Criminals and the lawless will not register their guns in NDAL. They always get any firearms they desire through their own illegal means. Then why the law abiding are being targeted?

 

The real implicit and unstated purpose and effect of any gun databases is fraudulent, to harass and persecute law-abiding gun owners. Gun databases have completely failed in so many countries, what is so extraordinary thing that will be done by Ministry of Home Affairs which so many countries were unable to do? What is the real purpose of creating NDAL and wasting hundreds of crores of tax payer's money? Ministry of Home Affairs must publicly clarify the real intent and interests behind NDAL. This is not merely my personal demand or desire but the the Parliament's mandate under Sections 4(2), (3) & (4) of the Right to Information Act, 2005

 

Recommendation: NDAL is ultra vires of Arms Act 1959 as well offending Constitutional values of freedom, liberty, minimum governmental power and interference into privacy. Destroy the NDAL since it will defeat the very purpose of Section 42 of Arms Act 1959. Also it has grave national security implications.

 

(n) RULE 31 Page 26 (page 39 of pdf) Except in cases involving handguns this rule will severely affect the owners of long guns (shotgun / rifles etc.) to use their firearm for lawful protection in case there is sudden attack by criminals. Also, this rule will severely affect private security guards on duty. Furthermore, there are sufficient sections under IPC and CrPC to restrict any display of arms in terrorem populi, there is no benefit served by placing such restrictions on licensed gun owners via the Arms Rules.

 

Recommendation: This rule is very unreasonable, contrary to the objects, reasons and spirit of Arms Act 1959 and must be deleted.

 

(m) RULE 57 (6) Page 57 (page 70 of pdf) Needless to say nothing in Rule 57 can apply to citizens for any firearms or ammunition not part of commercial activity under Part XIII of the Constitution, including self made or home made for non commercial reasons. It would only apply for licenses for commercial activity. This sub-rule has clearly been introduced with little thought given to the technical & practical feasibility of implementing this in the real world. It is technically and practically impossible to implement this rule both for domestically manufactured ammunition as well as for imported ammunition. The lawless have their own ways of manufacturing or smuggling ammunition from across the borders. At the best this rule will be nothing but a tool to harass and persecute the law abiding citizens.

 

Recommendation: This proposed Sub-rule 57(6) must be deleted.

 

(n) RULES 74 and 75 Pages 76 and 77 (page 89 and 90 of pdf) These are pointless, meaningless and offensive for something that is clearly a fundamental right under Part III of the Constitution. Needless to say and repeat licensing cannot apply to citizens for any firearms or ammunition not part of commercial activity under Part XIII of the Constitution, including self made or home made for non commercial reasons. So just forget these rules of deactivating firearms. To understand please read below -

 

The 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;”

It becomes clear from reading Section 45(c) that the Arms Act 1959 does not apply, if the weapon falls in any one or more of the following three categories:

i) any weapon of an obsolete pattern

or
ii) of antiquarian value

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


 

Please note that legislature has defined arms and firearms in Arms Act 1959. But in order to exclude both arms and firearms from the scope of Arms Act 1959, the legislature has deliberately used the words “any weapon” in Section 45(c) of Arms Act 1959.


Going by Section 45(c) of Arms Act 1959, one may manufacture, buy, sell or possess muzzle loading guns, rifles, pistols, revolvers, matchlocks, flintlocks or similar firearms of "obsolete pattern" without any kind of license under the Arms Act 1959. Cap and ball, black powder revolvers would also fall in the category of "any weapon of an obsolete pattern". And to ascertain if a weapon is of an antiquarian value, The Antiquities and Art Treasures Act 1972 tells what is an antiquity. Any weapon that is not less than one hundred years is an antiquity, therefore it also does not require license under Arms Act 1959. Neither do you have to drill holes or spoil their antiquarian value by converting them into non firing weapons. All one has to do is contact the nearest office of ASI and register them under Antiquities and Art Treasures Act 1972.


Exactly because licensing cannot apply to citizens for any firearms or ammunition not part of commercial activity under Part XIII of the Constitution, including self made or home made for non commercial reasons, that is why percussion caps, gunpowder and small arms nitro compound not exceeding five kilograms, possessed for personal use do not need a license under Explosives Rules 2008. I quote the relevant portions below.


Rule 2(24) of Explosives Rules 2008 says:

““fireworks” means low hazard explosive comprising of any composition or device manufactured with a view to produce coloured fire or flame, light effect, sound effect, smoke effect (coloured or natural), or combination of such effects and includes fog-signals, fuses, rockets, shells, percussion caps;”


Rules 9(4)(5)(6) of Explosives Rules 2008 say:

Rule 9. No licence needed in certain cases.— Notwithstanding anything contained in rule 7, no licence shall be necessary for the following cases, namely :—

(4) transport of safety fuse and fireworks;

(5) possession of fireworks not exceeding one hundred kilogram for own use and not for sale;
(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;”


Rule 57 of Explosives Rules 2008 says:

Rule 57. Small quantities of fireworks exempted.— Nothing contained in rules 49, shall apply to the transport of manufactured fireworks in the custody of a person entitled to possess them without a licence under sub-rule (5) of rule 9:

Provided that not more than five kilograms of manufactured fireworks, securely packed in original packing, shall be so transported in any motor vehicle used for conveyance of more than six passengers.”

 

Going by the Section 45(c) of Arms Act 1959 and Rule 2(24), Rules 9(4)(5)(6), Rule 57 of Explosives Rules 2008, one can lawfully and legally possess without license, weapon/s of obsolete pattern along with percussion caps, gunpowder and small arm nitro-compound each not exceeding five kilograms for all lawful purposes including shooting sports, target practice, re-enacting film scenes, self defense etc.


The 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, so that these laws do not offend the Constitution and can pass the test of reasoning i.e. doctrine of strict scrutiny for citizens and proportionality analysis for persons.

 

Recommendation: Since these rules are clearly ultra vires of Arms Act 1959 and the Constitution, they must be deleted.


(o) RULE 79 Page 80(page 93 of pdf) Please refer paragraphs numbered (7), (8) and (19) of this document. Arms Act 1959 besides flowing from various Articles under Part III like 19, 21 and 25, is an Act to consolidate and amend the law relating to arms and ammunition. This can be ascertained by reading the very first few lines of Arms Act 1959. The message and intent of Parliament for the purpose of export or import of arms and ammunition is very clear and specific in Section 10(1)(a) of Arms Act 1959, it is flowing directly from freedoms and liberties of citizen under Part III of the Constitution and thus not commercial under Part XIII of the Constitution. That is why no separate license for import or export is required. On the other hand the since the ambit and scope of Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 is so generic and non specific, that the Parliament considered it fit to delegate its legislative powers to the Executive.


Also the Section 11(2)(u) of The Customs Act, 1962 is very clear about the prevention of the contravention of any law for the time being in force. Please note the words “any law for the time being in force ”, it includes Section 10(1)(a) of Arms Act 1959. Thus Foreign Trade (Development & Regulation) Act, 1992 and the extant Export & Import Policy (EXIM Policy) cannot go against/ contravene the Section 10(1)(a) of Arms Act 1959 or GSR 991 dated 13.7.1962 that is exempting air weapons. Both Arms Act 1959 and the notification under its Section 41 are surely specific laws and thus are done in specific interests of the general public. Besides going against the Section 10(1)(a) of Arms Act 1959 to prevail since it is a specific and consolidated law for arms and ammunition, Foreign Trade (Development & Regulation) Act, 1992 and the extant Export & Import Policy (EXIM Policy) would also be going against the Section 11(2)(u) of Customs Act 1962.


Recommendation: This proposed rule is clearly offending the freedom and liberties of citizens guaranteed under Part III of the Constitution and that is why also ultra vires of Section 10(1)(a) of Arms Act 1959, which is flowing directly from freedoms and liberties so solemnly guaranteed under Part III of the Constitution. Thus there is clearly no need to go ahead with proposed rule 79. It must be deleted.


(p) SCHEDULE I Page 100 (page 113 of pdf) It must be understood that rights under Section 13(3)(a) of Arms Act 1959 are flowing directly from Article 19 and thus doctrine of strict scrutiny applies. For I (b) it must be noted that exactly because of doctrine of strict scrutiny, the Arms Act 1959 is making distinction of only fully automatic and non automatic firearms. The semi automatic would fall in category of non automatic. Please read paragraph numbered 21(h) of this document related to lawful meaning of Section 13(3)(a) of Arms Act 1959. It makes no distinction between semi automatic and non automatic guns. It means every type of gun that is not fully automatic is part and parcel of Section 13(3)(a) of Arms Act 1959. Anything contrary to it is ultra vires of Arms Act 1959.

 

For I (c) the implicit and unstated reason for keeping these bores in separate category is lack of trust in members of armed forces of the State and the citizens of the State. This was done by British so that in event of repeat of mutiny of 1857, the ammunition seized from government armories does not fire in the guns possessed by revolting citizens of India. There is no question of such revolt now because government can always be changed by vote. Since there is no conflict of interest, a democratically elected government cannot afford to distrust its soldiers or citizens. There is no reasonable justification. Moreover it is fundamental duty of every citizen under Articles 51A(c) and (d) of the Constitution to protect and defend the State during emergencies. It would be a logistic nightmare for government to manufacture and supply ammunition of different bores to its armed forces and citizens. Exactly for this reason most of the democratic governments encourage their citizens to posses guns of same bores as possessed by the State forces.

 

Recommendation: Since doctrine of strict scrutiny applies, all semi-automatic guns must be removed from the list of restricted arms and included in Category III(d). Similarly all restrictions based on calibres must be done away with once and for all. Category I(c) must be deleted.

 

Category III(f)(g)(i)(j) for air guns, firearm replicas, paintball markers or paintball guns, blank-firing firearms. Due to Notification G.S.R. 991 air guns, paintball markers or paintball guns are not firearms for purpose of Arms Act 1959. The deal-wood test mentioned in G.S.R. 991 is well suited for country like India. It has stood and passed the test of time. If desired the thickness of deal-wood can be increased in the deal-wood test by suitable Notification.

 

Firearm replicas, blank-firing firearms are not firearms for Arms Act 1959. Just forget them.

 

Recommendation: All these must be kept out of all licensing requirements exempt from all sections of the Arms Act 1959.

 

Category III(h) Electronic disabling devices having firing range of less than 4.5 meters. Needless to say and repeat it cannot apply to citizens for any firearms or ammunition not part of commercial activity under Part XIII of the Constitution, including self made or home made for non commercial reasons. So just forget them.

 

Recommendation: All these must be kept out of all licensing requirements exempt from all sections of the Arms Act 1959.

 

CONDITIONS ON LICENCE Page 116 (Page 129 of pdf) Needless to say and repeat licensing cannot apply to citizens for any firearms or ammunition not part of commercial activity under Part XIII of the Constitution, including self made or home made for non commercial reasons. So just forget these conditions. The licensing is null and void in face of Articles 13, 14, 15, 19(1)(b), 21, 25(1), 25(2)(a), Explanation I in Article 25, 26, 27, 29(1) and 300A. Please refer paragraphs numbered (17), (18) and (19) of this document.

 

FEES Needless to say and repeat licensing cannot apply to citizens for any firearms or ammunition not part of commercial activity under Part XIII of the Constitution, including self made or home made for non commercial reasons. All these fees are no doubt for commercial activity but have been hiked substantially. This seems to be an attempt to dissuade ordinary citizens from applying for a commercial licence and/ or making renewals a greater financial burden on existing licence holders.

 

Recommendation: Licence fees must be reasonable and affordable to all, not just the financially well off. Also provisions for less fees be made of women keeping in mind Article 15(3) of the Constitution. Also provisions of less fees be made for the weaker sections of society by keeping in mind the Articles 38, 39 and 46.

 

All this shows that the Draft Arms Rules 2015 is full of glaring and serious mistakes that offend not only the Arms Act 1959 but also the Constitution of India. It is reasonable to conclude that these proposed rules have not been written with due care and attention. There is no need to go ahead with these rules. Instead sincere effort be made to ensure that present Arms Act 1959 and its Rules must be amended in a manner so that they are in conformity with the Constitution.


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Samaritan

Excellent argument, but what next? We are too subjugated by arbitrary government controls that we’ve become accustomed to it. The root cause? IGNORANCE!  The most dangerous man, to any government, is the man who is able to think things out for himself. As long as the people are distracted by the ‘naach-gaana’, dramatic Serials, Comedy shows, etc. in the media, they have little or no inclination to be aware of what’s really going on in the world. ‘What good fortune for governments that the people do not think’ - Adolf Hitler.


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Sir, above are not mere arguments but Constitutional facts and truths. They must be respected and honored in true letter and spirit. Yes it is correct the root cause is IGNORANCE.

 

About what next, everyone should contact the members of Parliament and educate them. Tell them that RKBA is citizen's fundamental right. The Arms Amendment Bill wants to subvert this right. It must not be passed in its present form. It has even bypassed the recommendations of the report of Standing Committee on Home Affairs. The report can be read at http://www.lawyersclubindia.com/forum/Report-of-Standing-Committee-of-Parliament-on-Arms-Act-1959-38590.asp

 

National Association for Gun Rights India(NAGRI) had also submitted petition signed by 108 M.P.s to the previous Prime Minister. Details can be read at http://gunowners.in/

 

The matter of RKBA can also be taken up with Hon'ble Supreme Court under Article 32.

 
Reply   
 

All the disarming was done due to conflict of interest between the Crown and its subjects of British Indian Dominion. The Crown was interested in something whereas its subjects were interested in something else. Where is the conflict of interest between Indian State and all its citizens? After all it is a democratically elected government. The governance is being done with the consent and wish of the people. It is a very good question provided the courts ask and the government gives an honest reply.

 

We all know the real reason for disarming or selective disarming by British was political. It remains so even today everywhere in the world. Whether disarming was/ is good or bad is question of morality. The courts of law rarely enter the domain of politics or morality. Courts of law normally keep themselves restricted to questions of law and justice. For dealing with questions of law you can try to find if what is being done by government is within the Law or Constitutional mandate. Foundations and principles of Indian Constitution are based on British Common Law. Foundational purpose of any law is justice.And is disarming causing injustice? For example keeping victims of violence(including politically motivated violence) disarmed makes them unable to defend themselves or overcome the physical or numerical strength of their attackers. This is one of the greatest possible injustice.

 

Also the main or substantial question of law is did the British Parliament or its representatives that were enacting the laws in India or its British colonies anywhere in the world have legislative powers to make possession of personal arms or firearms a subject of licensing? License means permission and not a right. To find the answer let us read the relevant portions of English Bill of Rights 1688 and Article IV of Union with England Act 1707.

 

The English Bill of Rights 1688 can be read at http://www.legislation.gov.uk/aep/WillandMarSess2/1/2

 

The Article IV of Union with England Act 1707 can be read at http://www.legislation.gov.uk/aosp/1707/7 It says the following -

 

"That all the Subjects of the United Kingdom of Great Britain shall from and after the Union have full Freedom and Intercourse of Trade and Navigation to and from any port or place within the said United Kingdom and the Dominions and Plantations thereunto belonging And that there be a Communication of all other Rights Privileges and Advantages which do or may belong to the Subjects of either Kingdom except where it is otherwayes expressly agreed in these Articles"

 

Above clearly confirms that subjects of Dominions have Rights. The British India was a Dominion before 1947. As per Independence of India Act 1947 enacted by the British Parliament, two Dominions of India and Pakistan were created in 1947. The Subjects of both the Dominions got the Rights that are part of English Bill of Rights 1688 and the British Common Law. The same has been acknowledged by the Indian Constitution. It means we have those rights even today.

 

Now let us read the relevant portions of The English Bill of Rights 1688. The English Bill of Rights 1688 under the headings The Heads of Declaration of Lords and Commons, recited and under heading Subject’s Rights various Rights are listed. The "Standing Army" and "Subjects Arms" are important for RKBA.

 

The use of expression "Standing Army" and not just "Army" clearly implies that there exists a "Non Standing Army" or army of common people keeping and bearing arms that are their personal or individual rights and supplied by themselves, over which the king or his legislature has no right to disarm. They are commonly known as militia or irregulars. This can be confirmed from Text of the Assize of Arms of 1181 and Assize of Arms of 1252. Under Subject’s Rights for standing army it establishes that for raising or keeping regular or standing army at times of peace, the king needs Parliamentary approval( so that army may not be misused against army of common people or tax them needlessly).

 

Under Subjects Arms it clearly mentions that by causing several good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and employed contrary to Law. It establishes that for purely political reasons the king had disarmed one class of people and kept other class of people armed and employed. Under Subject’s Rights for Subject's Arms it removes politically motivated class based restrictions, restores the pre existing rights of subjects which are Protestants to have Arms for their Defence suitable to their Conditions and as allowed by Law. The expression "suitable to their Conditions" means suitable to their economic or financial conditions, that is which they can afford and "as allowed by Law" is affirmative and enabling and not some restrictive clause. This view can be further confirmed by reading the text of the Assize of Arms of 1181. The word Law in those times was used for Common Law as affirmative or enabling law and not restrictive law as in present times.

 

As one may refer pages 19, 20, 21, 25, 30, 33, 34, 35, 36, 41, 44, 47 under pages titled Opinion of the Court in District Of Columbia v. Heller at http://www.supremecourt.gov/opinions/07pdf/07-290.pdf In this judgment the US Supreme Court has acknowledged that the 2nd Amendment and RKBA is descending from English Bill of Rights 1688-89.

 

Further to the above points, the points to be noted are that -

 

RKBA is an inherent human right.

 

All the Arms Acts enacted by the British and the present Indian State are flowing from the British Common Law principles.Even the Indian Constitution is based on the British Common Law principles.

 

One can say that the present Arms Act 1959 is continuation of those same principles that were applicable in previous Arms Acts and the preamble of Act XXVIII of 1857 is accepting those principles when it says “An Act relating to the importation, manufacture, and sale of Arms and Ammunition, and for regulating the right to keep or use the same”. Therefore RKBA is part of Arms Act 1959.

 

It says "regulating the right to keep or use the same" Why it does not use the word "bear"? Because such possession of arms "bear" is matter of personal liberty under common law. It is only talking about commercial aspects of keep and use of arms. The State is a commercial entity can be confirmed by reading Article 25, 26, 27 of the Constitution of India.

 

Part III of the Indian Constitution is an inspiration from Universal Declaration of Human Rights. India has signed in favor of Universal Declaration of Human Rights. Its Preamble reflects what is embedded inside the Universal Declaration of Human Rights set forth from Article 1 to 30. The preamble says the following -


"Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,"

 

Thus it clearly means that right to rebellion for self defense(individually as well as people) as a last resort is an inherent human right and it includes the right to the tools of rebellion and self defense, that is RKBA. The same is implicit and present in the Articles 1, 2 and 3 of Universal Declaration of Human Rights. When it says security of person, it includes the RKBA. Rebellion(as well as tools of rebellion) as a last resort is also part of British Common Law.

 

The Protection of Human Rights Act, 1993 enacted by Indian Parliament acknowledges the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights. These two covenants as well as various other Covenants are nothing but detailed legally binding agreements that are flowing from Universal Declaration of Human Rights that have been signed by UN member States.

 

Since these covenants are flowing from Universal Declaration of Human Rights, RKBA is also embedded in these two Covenants. Articles 1, 2, 3, 5, 6.1, 9.1, 46 and 47 of International Covenant on Civil and Political Rights includes RKBA. Depriving RKBA means violating Article 8 implicitly because slavery or servitude also means a condition in which one lacks liberty especially to determine one's course of action or way of life or political status. If you are kept disarmed under any color or pretext, then your course of action to implement your inherent right of self defense(your course of action or way of preserving your life or political status) lacks liberty, both as an individual as well as people.


Preamble of International Covenant on Economic, Social and Cultural Rights says "Recognizing that these rights derive from the inherent dignity of the human person,". RKBA is also a social and cultural right originating from inherent dignity of person. This can be ascertained by reading Explanation I of Article 25 of Indian Constitution. Kirpan is made of two words Kirpa meaning grace or kindness. Aan meaning dignity. Thus Kirpan means one that has grace or kindness to adore and protect the dignity of person. Thus RKBA can be read into Articles 1, 2, 3, 5, 10, 15, 24, 25 of International Covenant on Economic, Social and Cultural Rights.

 

Contemporary scholars have little explored the preconditions of genocide. Still less have they asked whether a society's weapons policy might be one of the institutional arrangements that contributes to the probability of its government engaging in some of the more extreme varieties of outrage. Though it is a long step between being disarmed and being murdered -- one does not usually lead to the other -- it is nevertheless an arresting reality that not one of the principal genocides of the twentieth century, and there have been dozens, has been inflicted on a population that was armed. -- Daniel D. Polsby, Washington University Law Quarterly, Volume 73, Number 3, Fall 1997.

 

Some ignorant persons or intellectually dishonest persons or having self righteous or fascist views cannot see or acknowledge any harm in disarming the people, Disarming of people has a nasty downside. Its victims number in the tens of millions. Its downside is genocide: the mass-murder of civilians on account of religion, language, or political views. Genocide is a crime against humanity, giving political reasons like "unity" or territorial "integrity" is no defence against crime of genocide.

 

As per Article 2 of UN Convention on the Prevention and Punishment of the Crime of Genocide, genocide means any of the following acts committed  with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as  such  :


(a)  Killing members of the group;


(b)  Causing serious bodily or mental harm to members of the group;


(c)  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;


(d)  Imposing measures intended to prevent births within the group;


(e)  Forcibly transferring children of the group to another  group.


Indian State is a signatory to this genocide convention but the State has been consistently unable to prevent or punish genocides since 1947. Disarming of the people has made conducting genocides, suppressing all basic freedoms and liberties guaranteed under the Constitition very easy and cost effective pursuit to suppress political problems and deny that serious political problems exist and need to be solved with intellectual honesty. In other words making mockery of the Constitution and human rights has become a cheap and easy pursuit to achive diabolical political goals. Very conservative estimates of the numbers killed in genocides in India since around 1947 to this day would probably run into millions. Therefore in order to prevent any further genocides in any manner or form, respecting the basic foundational fundamental human right of RKBA needs to be respected in true letter and spirit.

 
Reply   
 

The following makes it very clear that the Indian State not only failed miserably to respect it's treaty obligations on prevention and punishment of crime of genocide but also made efforts to hide the truth.

1) Genocide of Muslims from Sundarlal Committee report submitted to Prime Minister of India. Rather than taking action as per Convention on Prevention and Punishment of the Crime of Genocide, the report was kept secret for decades.

 

The Sunderlal team visited dozens of villages throughout the state.

 

At each one they carefully chronicled the accounts of Muslims who had survived the appalling violence: "We had absolutely unimpeachable evidence to the effect that there were instances in which men belonging to the Indian Army and also to the local police took part in looting and even other crimes.

 

"During our tour we gathered, at not a few places, that soldiers encouraged, persuaded and in a few cases even compelled the Hindu mob to loot Muslim shops and houses."

 

The team reported that while Muslim villagers were disarmed by the Indian Army, Hindus were often left with their weapons. The mob violence that ensued was often led by Hindu paramilitary groups.

 

In other cases, it said, Indian soldiers themselves took an active hand in the butchery: "At a number of places members of the armed forces brought out Muslim adult males from villages and towns and massacred them in cold blood."

 

The investigation team also reported, however, that in many other instances the Indian Army had behaved well and protected Muslims.

 

The backlash was said to have been in response to many years of intimidation and violence against Hindus by the Razakars.

 

In confidential notes attached to the Sunderlal report, its authors detailed the gruesome nature of the Hindu revenge: "In many places we were shown wells still full of corpses that were rotting. In one such we counted 11 bodies, which included that of a woman with a small child sticking to her breast. "

 

And it went on: "We saw remnants of corpses lying in ditches. At several places the bodies had been burnt and we would see the charred bones and skulls still lying there."



The Sunderlal report estimated that between 27,000 to 40,000 people lost their lives.

No official explanation was given for Nehru's decision not to publish the contents of the Sunderlal report, though it is likely that, in the powder-keg years that followed independence, news of what happened might have sparked more Muslim reprisals against Hindus.

 

It is also unclear why, all these decades later, there is still no reference to what happened in the nation's schoolbooks. Even today few Indians have any idea what happened.

 

The Sunderlal report, although unknown to many, is now open for viewing at the Nehru Memorial Museum and Library in New Delhi.

Source http://www.bbc.co.uk/news/magazine-24159594


2) Genocide of Christian Nagas -

1948 – The new Indian government begins raids of Naga villages in what is now Manipur, south of present day Nagaland. These raids continue for the next decade. NNC elders are hunted down and killed. The Indian government attempts to legitimize their genocide of the Nagas by identifying them as dangerous insurgents.

1958 – The Indian government passes the Armed Forces Special Powers Act, which gives them the right to “shoot to kill” on mere suspicion of “insurgency.” The Indian army, Assam Rifles, goes on to kill over 100,000 Nagas, rounding them up into 59 concentration camps.

Source http://nagalandmusings.blogspot.in/2013/01/indias-untold-genocide-of-nagas.html


3) Genocide of Sikhs -

The decennial census operations completed by the time indicated, the extent to which the Sikh genocidal policy initiated by Indira had had its impact during the decade 1981-1991.

Keeping in view the strength of the armed forces, the CRPF and the BSF in Punjab at the time of census operations and the strength of Purbea labour in various districts, and reading in between the lines the provisional population figures issued by the census authorities, one comes to the startling conclusion that in Punjab,

 

a) the Sikhs have lost anything between ten to twelve lakh (1 to 1.2 mn) people mainly youth, during the decade 1981-91: the break up being over 200,000 thousand each in Amritsar and Gurdaspur districts: over 100, 000 each in Ludhiana, Patiala; and Bhatinda districts; between 50,000 to 100,000 in Faridkot, Hoshiarpur, Kapurthala, Jalandhar, Ferozepur and Sangrur districts; between 25,000 to 50,000 in Rupnagar district.

b) the number of the Sikh women in age group 15-35 in 1991 was higher than the corresponding figure for the Sikh menfolk in the same age group.

 

The Operation Woodrose was complementary to the Operation Bluestar in scanning the Sikhs in the countryside. The army in baat cheet, talking points, simply laid down that an amritdhari, baptised, Sikh was a potential terrorist. The baat cheet un-abashedly declared Guru Gobind Singh to be the fountainhead of the Sikh militancy and virtually declared war on him. This was for the third time in the history of the Sikhs that such a decree of mass annihilation was issued. The first decree to kill worshippers of Nanak - the Sikhs - was issued by Emperor Bahadur Shah (1707-12) and was repeated by Emperor Farrukh Siyar (1713-19). Now, the Government of India made a distinction between the Sikhs of Guru Gobind Singh and others, as it had effectively used patit, renegade, Sikhs in the Operation Bluestar. Also, Guru Gobind Singh had been persona non grata to M.K. Gandhi, later acclaimed father of “our nation,” who had described him as ‘a misguided patriot’, and had otherwise till his death carried on a campaign against the Sikhs maintaining keshas and keeping kirpans.

 

During the Operations Bluestar and Woodrose, one wearing kesari turban was summarily shot at, while the one wearing blue turban and keeping kirpan could in certain circumstances save his life after giving up both. Honour of no Sikh was safe. It counted for nothing.

 

The Sikhs keeping keshas especially became victim of wide witchhunt for the armed forces with youth especially between 15 to 35 years coming for searching inquisitions. The army combed each and every village and town, and with the help of known Congressites, BJP and CPM activists rounded up all the Sikhs active in community services in local Gurdwaras, besides activists of Akali, Dal. Many were summarily shot: and a lot of them got indicted because of generations old enmities. In the words of Sanjeev Gaurl “The army arrested fewer terrorists and more innocent Sikhs during mopping up operations. The army indiscriminatingly raided Sikh homes in the villages, abused their family members and took into custody young people. . . Said a police officer, ‘Sikhs in Punjab villages today hate the army. (It) really let loose a reign of terror’. Go to any Punjab village and they have those sad and tragic stories to narrate to you.”

 

The author’s enquiries in end-1984 revealed that during the first four to six weeks of Operation Woodrose about 100,000 youth had been taken into custody, and many of them were not heard of again: and about 20,000 belonging to third generation after independence escaped to Pakistan. That was having very adverse repercussions on the Sikh perception of the armed forces as a force of occupation and a vehicle of oppression. The army and the para military forces were breeding terrorism, which was natural reaction to tyranny. The government’s oppressive intentions were clear by promulgation of National Security Act Ordinance on June 22, 1984, and Terrorist Affected Areas Ordinance on July 14, 1984. This was precursor of Terrorist and Disaffected Areas Act.

 

It was in this melee that a nephew of the author was taken into custody in September 1988 at Ludhiana. The family was not told of boy’s being killed the same night. That made the author, then a senior officer in the Indian Foreign Office to contact Additional Secretary (Police) in the Union Home Ministry, and at his instance K.P.S. Gill at Chandigarh and SSP Ludhiana Mr. Sumed Saini. While in Gill’s office, the author learnt that the police had taken into custody about 30,000 school going boys who had taken amrit, baptism, and they were not being released. Later, the author met at Chandigarh the head of CRPF who entrusted a very senior officer to find out about the boy. He stated that Sumed Saini SSP Ludhiana and one Bahuguna head of CRPF unit in Ludhiana, had liquidated a large body of the Sikh youth, and that, he said, was more or less true for whole of the Punjab.

 

Source Sikhs in History by Dr. Sangat Singh, Publisher- Singh Brothers (October 1, 2002), ISBN-10: 8172052766, ISBN-13: 978-8172052768. One may search for this book on internet, it is also available for free download. About Dr. Sangat Singh - Dr. Sangat Singh was member of the policy planning think tank in the Indian Foreign Office. He was an alternate member of the Joint Intelligence Committee, the supreme policy planning body of the Government of India, for two years each in early and late 1970’s. in between, for three years, he was Director, strategic studies, in India’s Defense Ministry. Dr. Sangat Singh joined the Ministry of External Affairs in early 1960’s following Nehru’s China war, as a Sinologist specializing in guerrilla warfare. This was shortly overtaken by his numerous high profile stints as an analyst on Pakistan, and a significant one on Iran. He spent his last decade in the foreign office dealing, inter alia, with disinformation. he was known for his incisive analysis. Dr. Sangat Singh is a keen observer of contemporary events and gained a rare insight into the ongoing developments in Punjab. He has half a dozen books to his credit. He did his PhD from Punjab University in 1964. Note: He is the senior most Sikh to ever work for RAW to date. The Indian Government has never rebutted or challenged his numbers ever! Source https://thirdsikhgenocide.wordpress.com/2014/10/10/third-sikh-genocide-1-to-1-2-million-lost/

 

Denial is the eighth stage that always follows a genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims. - Gregory H. Stanton, Research Professor in Genocide Studies and Prevention at George Mason University in Fairfax County, Virginia, United States. Formerly of the US State Department and the founder of Genocide Watch.

 

Above mentioned quote is worth noting because the facts are very much applicable to this country, because genocides are officially denied, evidence destroyed and then again repeated with precision. There have been many more genocides in India than just these three mentioned above. The genocides in New Delhi in October 1984 and in Gujrat in 2002-3 are also well known. With the mischievous view to deny genocides have taken place, they are usually passed off in the media as “riots”.

 

Genocide is not just a murderous madness; it is, more deeply, a politics that promises a utopia beyond politics - one people, one land, one truth, the end of difference. Since genocide is a form of political utopia, it remains an enduring temptation in any multi ethnic and multicultural society in crisis. - Michael Ignatieff

 

Above mentioned dangerous promise of political utopia of “one people, one land, one truth, the end of difference” needs to be noted in the Indian context in relation to genocides, since Indian society is also multi ethnic and multi cultural society. Similar goal of political utopia of “one people, one land, one truth, the end of difference” i.e. the denial that different people with different ideas and values do exist and also have their own rights and laws, appears manifested in the Explanation II of Article 25 wherein the persons professing the Sikh, Jaina or Buddhist religion have been clubbed into those believing in Hindu religion. Similarly Article 44 under Directive Principles of State Policy stating that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Such a political endeavour can only be realized by the denial of the fact that different people with different ideas and values do exist, along with their own their own rights and laws. In such politically motivated circumstances and goals, the temptations of committing genocides of unarmed people, to easily end or terrorize into submission of the political opposition against uniform civil code and various similar other political matters becomes even more attractive and enduring.

 

Contemporary scholars have little explored the preconditions of genocide. Still less have they asked whether a society's weapons policy might be one of the institutional arrangements that contributes to the probability of its government engaging in some of the more extreme varieties of outrage. Though it is a long step between being disarmed and being murdered -- one does not usually lead to the other -- it is nevertheless an arresting reality that not one of the principal genocides of the twentieth century, and there have been dozens, has been inflicted on a population that was armed. - Daniel D. Polsby, Washington University Law Quarterly, Volume 73, Number 3, Fall 1997.

 

Some ignorant people cannot see any harm in disarming the people, but it has a nasty downside. Its victims number in the tens of millions. Its downside is genocide, that is the mass murder of civilians on account of ethnicity, religion, language, or political views. The ingredients or formula for Genocide are: hatred + mischievous Government + disarmed civilians. How reasonable is this formula? It is very reasonable. First, it states a fact or common sense that unarmed, defenseless people have no hope against armed aggressors. Second, it states the historical fact or truth that evil and mischievous governments did wipe out tens of millions of innocent non-military lives in the 20th Century alone. When some ignorant persons quote a statistic about how many people are killed by firearms misuse, the argument sometimes bogs down into whose crime statistics to believe and how to count crimes verses the defensive firearm uses. In the 20th Century alone:

 

• Governments murdered at the very least four times as many civilians that were killed in all the international and domestic wars combined.

 

• Governments murdered tens of millions more people than were killed by common criminals.

 

How have the governments killed so many people? Because the governments have all kinds of arms and organized power. And the people, that is the unarmed and unorganized victims, are unable to resist the violent might of government. Since 1900, at least fourteen major genocides by governments have occurred worldwide involving tens of millions of victims (read chart below):

 

Government

Dates

Targets

Civilians Killed

"Gun Control" Laws

Features of over all "Gun Control" scheme

Ottoman Turkey

1915 - 1917

Political opponent, Armenian people
(mostly Christians)

1 - 1.5 million

Art. 166, Penal Code, 1866 & 1911 Proclamation, 1915

• Permits required

• Government list of owners
• Ban on possession

British India

1919

Unarmed political opponents (mostly Sikhs) assembled peaceably in Jallianwala Bagh, Amritsar, Punjab

1500

Arms Act, 1878

• Licenses required

• Government list of owners
• Severe penalties

• Warrant less searches

• Confiscation powers

Soviet Union

1929 - 1945

Political opponents,
farming communities

20 million

Resolutions, 1918
Decree, July 12, 1920
Art. 59 & 182, Pen. code, 1926

• Licensing of owners
• Ban on possession
• Severe penalties

Nazi Germany
& Occupied Europe

1933 - 1945

Political opponents,
Jews, Gypsies,
critics, "examples"

20 million

Law on Firearms & Ammunition, 1928
Weapon Law, March 18, 1938
Regulations against Jews, 1938

• Registration & Licensing
• Stricter handgun laws
• Ban on possession

British India, Dominions of India and Pakistan

1946 - 1947

Muslims, Sikhs, Hindus

3.4 million

Arms Act, 1878

• Licenses required

• Government list of owners
• Severe penalties

• Warrant less searches

• Confiscation powers

Dominion of India

1948

Political opponents, the Muslim people after annexation of Hyderabad

40,000

Arms Act, 1878

• Licenses required

• Government list of owners
• Severe penalties

• Warrant less searches

• Confiscation powers

Union of India

1958

Political opponents, the Christian Naga people

100,000

Arms Act, 1878

• Licenses required

• Government list of owners
• Severe penalties

• Warrant less searches

• Confiscation powers

China, Nationalist

1927 - 1949

Political opponents,
army conscriptts, others

10 million

Art. 205, Criminal. Code, 1914
Art. 186-87, Criminal. Code, 1935

• Government permit system
• Ban on private ownership

China, Red

1949 – 1952,
1957 – 1960,
1966 - 1976

Political opponents,
Rural populations,
enemies of the state

20 - 35 million

Act of Feb. 20, 1951
Act of Oct. 22, 1957

• Prison or death to "counter-revolutionary criminals" and anyone resisting any government program
• Death penalty for supply guns to such "criminals"

Guatemala

1960 - 1981

Mayans & other Indians,
political opponents

100,000 -
200,000

Decree 36, Nov 25 •Act of 1932
Decree 386, 1947
Decree 283, 1964

• Register guns & owners •Licensing with high fees
• Prohibit carrying guns
• Bans on guns, sharp tools
• Confiscation powers

East Pakistan, now Bangladesh

1971

Political opponents, intellectuals, ethnic Bengali people

3 million

Arms Act 1878

• Licenses required

• Government list of owners
• Severe penalties

• Warrant less searches

• Confiscation powers

Uganda

1971 - 1979

Christians,
political opponents

300,000

Firearms Ordinance, 1955
Firearms Act, 1970

•Register all guns & owners •Licenses for transactions
•Warrant less searches

•Confiscation powers

Cambodia
(Khmer Rouge)

1975 - 1979

Educated persons,
political opponents

2 million

Art. 322-328, Penal Code
Royal Ordinance 55, 1938

• Licenses for guns, owners, ammunition & transactions
• Photo ID with fingerprints
• License inspected quarterly

Union of India

1981 - 1991

Political opponents, the Sikh people

1.2 million

Arms Act 1959, various anti Constitution, anti human rights, draconian amendments to Arms Act 1959 done between 1983 - 1988

• Licenses required

• Government list of owners
• Severe penalties

• Warrant less searches

• Confiscation powers

Rwanda

1994

Tutsi people

800,000

Decree-Law No. 12, 1979

• Register guns, owners, ammunition

• Owners must justify need

• Concealable guns illegal

• Confiscating powers

Union of India

2002 - 2003

Muslim people

2000

Arms Act 1959, various anti Constitution, anti human rights, draconian amendments to Arms Act 1959 done between 1983 - 1988

• Licenses required

• Government list of owners
• Severe penalties

• Warrant less searches

• Confiscation powers

After reading the above chart illustrating the chilling crimes of genocide against humanity and facilitated by the State gun control, one common fact emerges very clearly, that behind the smoke screen “reasons” of gun control legislation, the real target is the political opponents. The political opponents are disarmed contrary to the human rights, Common Law or Constitutional principles and then genocided. This is nothing new to the history of human civilization, this can also be confirmed by reading the English Bill of Rights 1688 - 89. Under the heading “Subjects Arms” it clearly mentions that the King had caused several good Subjects being Protestants to be disarmed (for political reasons) at the same time when Papists were both Armed and employed contrary to Law. There were thirteen specific complaints and the sixth of these, set well above matters such as free elections, was that King James had “caused several good subjects, being protestants, to be disarmed at the same time when papists were both armed and imployed contrary to law.” The Bill did not seek to disarm catholics, but merely to place protestants on an equal footing by asserting that “the subjects which are protestants may have arms for their defence, suitable to their condition and. as allowed by law”. This statement must also be taken in the context of its day. The right to keep arms was a long established part of English Common Law but, because the Common Law is capable of change by various mechanisms, the right was not absolute and Charles II had modified it through his Militia Act of 1662 which continued the practice of requiring subjects to keep arms of a particular type according to their ‘condition and degree’ -- that is their rank in society and their wealth. The rights and liberties of Englishmen continued to expand under Common Law. In the 17th century, many of the supposed rights did not, in practice, extend to the bottom of the social ladder but by the 18th century, Common Law rights were well established. and of such a nature that Sir William Blackstone, in his Commentaries on the Laws of England (1765) was in no doubt that the right to keep arms was a vital part of the Common Law. Blackstone listed the rights or liberties of Englishmen and showed that to vindicate these rights when attacked, the Common Law provided that the subject was entitled to justice in the courts, the right Of petitioning the king and parliament for redress of grievance and, “the right of having and using arms for self preservation and defence.” Again for purely political reasons in 1920 the Government of Britain was in fear of popular revolution and documents such as the Cabinet Diaries reveal debates about the number of aircraft available for use against insurgents within the British Isles. In that climate, the registration of firearms (other than shotguns) was imposed for the stated purpose of “ensuring that all arms are available for redistribution to friends of the government”. In reality the legislation was passed to facilitate people's firearms confiscation, contrary to the foundational principles and rights under the Common Law enumerated in the English Bill of Rights 1688 – 89, in the event of popular civil unrest or revolution. Most people agree that gun confiscation, consisting of massive house to house raids, is very costly, time consuming and thus unlikely. It could lead to violent resistance, insurgency or a civil war. But slow, incremental confiscation, taking place over generations, by continually increasing restrictions on who may own guns, and what guns may be owned, is exactly the strategy that was used in England. It is really a question of relationship between the people and the State, of who is in charge, of who is the de facto master or the de facto slave, the people or the State? One can't expect politicians or bureaucrats to do anything other than work to make people dependent on the State or become its de facto slaves, it's in their best interest. Since no practical benefit has ever been demonstrated - anywhere in the world let alone India - for an arms licensing or registration scheme or even banning them, from the point of view of the prevention, detection or solving of crime, one must conclude that the primary intention is political, to harass the law-abiding. And the added benefit by consequence is if ever needed in the future, can conduct confiscation of the arms of political opponents to make them defenseless and thus making their killings or genocides an easy task.

 

All of the laws any government enacts are backed by the threat of force implicitly saying — “If you don’t obey the law, the State can and will harm you.” Without a countervailing threat of force, the State can fairly easily devolve into tyranny. What effective means would a law abiding citizen have at his disposal to stop the police or a government agent or any of a number of government officials who now routinely carry firearms, from unlawfully seizing his person or property, without the ability to similarly arm himself? Or, if a well intentioned government exceeds its bounds and begins to suppress individual freedoms and liberties, how would those individuals who cherish freedom and liberty attempt to resist that government in toto? The right to keep, bear and use arms provides the means for private citizens to preserve and protect liberty also from the State, be it foreign invasion or domestic hostility to freedom and liberty. Joel Barlow, a political theorist of Thomas Jefferson's time, wrote tellingly - “[The disarming of citizens has] a double effect, it palsies the hand and brutalizes the mind: a habitual disuse of physical forces totally destroys the moral [force]; and men lose at once the power of protecting themselves, and of discerning the cause of their oppression.” We live with a recent history of genocides by the State powers that have dwarfed in scope and cruelty anything Barlow or Jefferson could have imagined. The Turkish massacre of the Armenians, the Nazi final solution, the Soviet purges, the killing fields of Cambodia, the Hutu-Tutsi massacres in Rwanda, the repeated genocides of millions in the Indian sub continent, each and every one of these vast and hideous genocides was preceded by and relied upon the disarmament of the victims. It is more important than ever, today after a century of genocides, that we as people and citizens of this nation retain the power both to protect ourselves and to discern the cause of such oppressions. That cause has never been in civilian arms borne by free people, but in their opposite and enemy — the organized and conscienceless brutality of the cancerous and rouge States. It is time to recognize that we, as individuals and as citizens of our nation and our planet, have gone too far down a road that leads only to disintegration of both society and the self — a future of atomized and alienated sheep, terrified by the reflection in each others eyes of the phantoms in their own souls, easy prey for demagogues and tyrants. It is of no consolation or consequence that these demagogues or tyrants come to power with help of elections or they are fellow citizens. It is time for each of us to rediscover the dignity of free men and women in the only way possible, by proving it in the crucible of daily decision, even on ultimate matters of life and death. It is time for us to embrace bearing arms again — not merely as a deterrent against criminals and tyrants, but as a gift and sacrament and affirmation to ourselves.

 

Without the right to keep, bear and use arms, the Constitutional guarantees lack enforcement teeth. The courts may appear to be a means of protecting liberties, but they are administered by the State, and therefore can be used to the State’s purposes. The courts appear to be powerful given the constitutional framework of our country. Yet it is important to remember the practical fact that they are actually quite powerless by themselves. It needs to be noted and understood, the countries in which genocides have happened, also had courts or judiciary, but the courts failed to prevent or stop the genocides in progress or even punish those involved. The judiciary has no army or police to help it enforce its orders. The armed forces and police are controlled by the executive. The strength of the judiciary lies in the legitimacy it enjoys in the eyes of the public. Thus courts must be immune to the vagaries of public opinion, their moral authority can stem only from utmost rectitude and integrity. Similarly, voting and other means of enacting or repealing laws only works as long as both sides, private citizens and State agencies agree to abide by the outcomes of these actions. The only effective means of checking the State’s use of force is for the people to have a significant opposing force available. Thomas Jefferson understood this well and said: “The strongest reason for the people to retain the right to keep, bear and use arms is, as a last resort, to protect themselves against tyranny in government.” This timeless and universally applicable aphorism is very much in tune with the the Common Law, Articles 13(3)(a)&(b), 21 and the religious doctrines, sacraments recognized and embedded in Article 25 of the Constitution of India and the Preamble of the Universal Declaration of Human Rights that confirms the right of rebellion as a last resort against tyranny and oppression.

 

Many victim disarmament advocates appear to be much more trusting of the State and its agents. Most seem comfortable in allowing only law enforcement officials to possess guns. History shows time and again that when this happens, tyranny is the result. In caste based feudal India, it was a crime for non warrior castes to learn use of arms or keep and bear arms. Similarly in feudal Japan, the warrior class made it a crime for any other individuals to learn to fight or to have access to arms. Hitler began his reign of terror in part by strict enforcement of laws denying private ownership of firearms, and when the citizens were disarmed, and no one had the ability to ask him to step down, he began rounding up Jews, gypsies, blacks, and other non Aryans. For any age, there is undoubtedly an example.

 

It may seem unreasonable or crazy to think that such things can happen here in India — but it has already happened a number of times and no crystal ball exists that can show same or even worse might not happen again. Even the most well intentioned laws can have disastrous results. This is best summed up by the utterance of U. S. Supreme Court Justice Louis D. Brandeis, 1928:

 

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficial ... the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding

 

Agents of democratic governments also do make mistakes, and they can also be corrupted. No matter how unlikely either possibility may seem, the fact that they do happen makes it necessary for private citizens to be able to defend themselves against them. Democratic governments also have a record of stifling personal freedom and liberty in favor of State control. What if criminals subvert the democracy and take control of it? What if the de jure democratic government is subverted or taken over by de facto despotic leaders or tyrannical government that is not amenable to forces of reasoning or of democracy? For example Hitler had come to power through democracy. Once in power, he destroyed democracy so that no one was there to ask him to step down. The right to keep, bear and use arms is an individual citizen’s guarantee of having substantial protection against all such possibilities. By including right to keep, bear and use arms and militia in personal capacity in the Article 19(1)(b), the founders of the Constitution were stressing the importance of a vigilant, armed society, both for individual defense and the defense of common freedoms, life and liberty and it is reflected in Articles 51A((c),(d) & (i). The spirit behind the guarantee of right to keep, bear and use arms and militia in personal capacity by the Constitution is also exactly to counter and check this tendency of Governments, so that monopoly of power and violence does not lie with the Government but with the original sovereign i.e. the people of the country.

 
Reply   
 

The natural and human right to keep and bear arms and police powers, both individually and as an assemblage is also embedded in Sections 37 to 39, 43, 46, 47, 52 and 60 in Chapter V Arrest Of Persons of the Criminal Procedure Code, Section 129(2) in Chapter X Maintenance of Public Order and Tranquility of the Criminal Procedure Code and Sections 96 to 106 Indian Penal Code flowing from Article 21 as citizen's militia in personal capacity and control. In Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, Supreme Court observed that "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly."


The following three points clearly emerge 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


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 test "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly." Since above legal position already held by Supreme Court in Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244 is legally very sound and solid, the same position has also been repeatedly emphasized, reiterated unflinchingly in at least eighteen more judgments of Supreme Court mentioned below -



James Martin vs State Of Kerala on 16 December, 2003, Appeal (crl.) 887 of 1997, Special Leave Petition (crl.) 47-49 of 1998


State Of Madhya Pradesh vs Ramesh on 18 November, 2004, Appeal (crl.) 1023 of 1999


Babulal Bhagwan Khandare & Anr vs State Of Maharashtra on 2 December, 2004, Appeal (crl.) 1403 of 2004

 

V. Subramani And Anr vs State Of Tamil Nadu on 3 March, 2005, Appeal (crl.) 378 of 2005


Shivanna & Ors vs State Of Karnataka on 8 November, 2006, Appeal (crl.) 1130 of 2006


Naveen Chandra vs State Of Uttranchal on 27 November, 2006, Appeal (crl.) 1224 of 2006


Shahjajhan And Ors vs State Of Kerala And Anr on 26 February, 2007, Appeal (crl.) 262 of 2007


Krishna & Anr vs State Of U.P on 21 June, 2007, Appeal (crl.) 835 of 2007


Narain Singh & Ors vs State Of Haryana on 9 April, 2008, Appeal (crl.) 632 of 2008


Genda Singh & Ors vs State Of U.P on 9 July, 2008, Appeal (crl.) 1036 OF 2008


Satya Narain Yadav vs Gajanand & Anr on 1 August, 2008, Appeal (crl.) 305 of 2001


Dinesh Singh vs State Of U.P on 4 August, 2008, Appeal (crl.) 544 of 2001


Salim & Ors vs State Of Haryana on 11 August, 2008, (Arising out of S.L.P. (Crl.) No.463 of 2008)


Ram Pyare Mishra vs Prem Shanker & Ors on 22 August, 2008, Appeal (crl.) 181 of 2001


Raghbir Singh & Ors vs State Of Haryana on 12 November, 2008, Appeal (crl.) 1776 of 2008 (Arising out of S.L.P. (Crl.) No.3647 of 2008)


Ranveer Singh vs State Of M.P on 21 January, 2009, (Arising out of SLP (Crl.) No.3905 of 2008)


Arun vs State Of Maharashtra on 16 March, 2009, Appeal (crl.) 1490 of 2007


Darshan Singh vs State Of Punjab & Anr on 15 January, 2010, Appeal (crl.) 1057 of 2002


that right of self defense is a very valuable right, serving a social purpose and should not be construed narrowly. Self defense in order to be an effective right, it would be very reasonable to conclude right of self defense/ private defense includes it's means and modes i.e. the right to keep and bear arms. This view also gets confirmed by the views taken by Allahabad High Court in judgments for Ganesh Chandra Bhatt v. District Magistrate, Almora and others, AIR 1993 All. 291 on 12 March, 1993, by Hon'ble Justice Markande Katju and in Ajay Kr. Gupta v. State of U.P. and others in writ petition civil no. 49301 of 2011 by Hon'ble Justice Sudhir Agarwal that keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. If the person does not have the means and modes for effective right of self defense/ private defense, the right would be purely ephemeral and ineffective. It is a basic principle of law that what cannot be done directly cannot be permitted to be done indirectly. In other words one right cannot be undermined by undermining another right connected with it. In keeping with the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud" - Jagir Singh Vs. Ranbir Singh reported in AIR 1979 SC 381, the right of self defense includes the means and modes of self defense i.e. the right to keep and bear arms. By corollary it would be very reasonable to conclude right to keep and bear arms is also a very valuable right, serving a social purpose and should not be construed narrowly. And thus also be very reasonable to conclude the right to keep and bear arms has substantive and effective protection as a fundamental right under Part III of the Constitution of India. This view indeed gets confirmed by reading Article 19(1)(b) explicitly acknowledging arms as a fundamental right, along with Articles 51A(b),(c),(d) & (i) and Explanation I written in Article 25 of the Constitution of India wherein also arms are explicitly acknowledged as a fundamental right.


As rightly held by Supreme Court, right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly, the Section 96 of Indian Penal Code begins with the heading “Things done in private defence”. Please note word “Things” used by the legislature in Section 96 of Indian Penal Code. The legislature did not use the word like “Acts” or “Actions” instead of “Things” only and only because the right of private defense is connected with and includes many actions, rights and things like collecting by private or commercial buying or selling arms, ammunition, war like stores, communication equipments and fortifications necessary to have the ability to fully enforce this right whenever necessary, is part and parcel of the foundational fundamental principles of the Common Law. To prevent the possession of arms merely because criminals use them is to tell the innocent and law abiding that their rights and liberties depend not on their own conduct, but on the conduct of the guilty and the lawless, and the law will permit them to have only such rights and liberties as the lawless will allow. It is a very unreasonable proposition that is unacceptable to law. Society does not control crime, ever, by forcing the law abiding to accommodate themselves to the expected behavior of criminals. Society controls crime by forcing the criminals to accommodate themselves to the expected behavior of the law abiding.


Similarly since right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly, the collecting of arms in itself is a right and not a crime in itself can be further confirmed by reading the Section 122 of the Indian Penal Code. Its heading says “Collecting arms, etc., with intention of waging war against the Government of India.” The intention is the essential ingredient to make it an offense. Even Supreme Court in State (NCT of Delhi) vs. Navjot Sandhu, case number appeal (criminal) 373-375 of 2004, date of judgment 04-08-2005, held in paragraphs 282 and 283 of the report that in the context of 'war' the animus of the party is essential. This view has been again reiterated by Supreme Court in paragraphs 114 and 115 of Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. vs. Union of India & Anr. writ petition (criminal) no. 129 of 2012, judgment dated July 8, 2016. Thus the Section 122 of the Indian Penal Code makes very clear that unless there exists an intention or animus to wage a war against the Government of India, collecting of arms or war like stores or equipment or making preparations for war is not an offense in itself but a matter of right because it is every citizen's fundamental duty to be fully equipped, prepared and trained for defending the nation in his personal capacity and control under Articles 51A(b),(c),(d) & (i), which is reflection of his fundamental right under Article 19(1)(b) and it also gets manifested under the Punjab Village and Small Towns Patrol Act, 1918 and the Himachal Pradesh Village And Small Towns Patrol Act, 1964. The right to keep and bear arms is also getting manifested in a detailed manner in Article 246 read with entry number 5 in List I—Union List of the Seventh Schedule.

 

I would request all the readers of this post if they themselves or have any friends or relatives in the media and internet, this Supreme Court judgement should also be highlighted along with or within the news items of unarmed and defenseless victims of rapes, murders, dacoities, kidnappings etc. which are being published on almost daily basis. They would be doing a great moral and social responsibility by highlighting in the media and internet, this Supreme Court judgment and the real harm Arms Act 1959 is doing to the society.

 
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