Many people have been asking me if the Right to Keep and Bear Arms is guaranteed by our Constitution. In my opinion the answer is yes, it has been guaranteed under Articles 19 and 21 of Constitution of India. I would like to explain it today. Hon'ble Justice Markande Katju in his judgment(http://www.indiankanoon.org/doc/1434833/) contended that the Right to Keep and Bear Arms is embedded under Article 21, he ignored some very important points to support his contention, which I would like to explain below.
Before I go further, I would like to explain that in the layman's language, natural rights and human rights are "God" given rights. Human rights are those natural rights which are given to us by nature because we are humans, these are the rights that every human being is born with, as opposed to rights bestowed by the government or by human law. For example: The Right to Self Defense, the Right to Keep and Bear Arms are not "granted" by any government document or society. Humans had these rights which were fundamental to them, in order to safe guard their life even before any governments or societies were formed. Hence Self Defense and Right to Keep and Bear Arms are natural, human as well as fundamental rights. Only the modes and the means of enjoying these rights changed with the progress of society. It started with stones, wooden clubs and sticks, then to spears, bows and arrows, then to firearms. These rights are pre-existing, Constitutions merely "guarantee" these fundamental rights from violation by the State.
In my interpretation below, I am going by the assumption that provisions of the Constitution are mutually consistent. There are no internal logical contradictions. Also I am going by the assumption that powers are narrow, rights are broad. Delegated powers are to be interpreted as strictly as possible, consistent with the words, and rights as broadly as possible, with the presumption in favor of the right, and the burden of proof on those claiming a power. In cases of doubt, the presumption is not in favor of a power. Supreme Court has also given the opinion that citizens should be able to enjoy the rights conferred under Part III of the Constitution to the fullest measure.
Constitution is not granting any fundamental rights to its citizens, it is merely guaranteeing pre-existing fundamental rights. Constitution is interpreted as a harmonious, contiguous and logical whole, we cannot pick and choose the meaning of sub clauses differently within the same clause as per our convenience. Sub Clauses under Articles 19(1) are talking of rights of citizens and Clauses 19(2) to 19(6) are talking about powers of the State to create reasonable restrictions on the respective rights.
(i) Wherever in the Article 19(1) of the Constitution is joining two fundamental rights, it is joining them with the word "and".
I am illustrating with help copy of concerned sub clauses in Article 19(1) below:
19. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right—
(a) to freedom of speech and expression; (It is referring to the Right to Freedom of Speech and The Right to Freedom of Expression)
(b) to assemble peaceably and without arms; (It is referring to the Right to Assemble Peaceably and without the Right to Keep and Bear Arms)
(e) to reside and settle in any part of the territory of India; 1[and] (It is referring to the Right to Reside in any part of the territory of India and the Right to settle in any part of the territory of India
I am interpreting the Article 19(1)b "to assemble peaceably AND without arms;" in its entirety in context to Part III of the Constitution. If we read Article 19(1)b carefully it becomes clear that it is talking of at least 2 rights, namely the Right to Assemble Peaceably AND the Right to Keep and Bear Arms. It is providing a guarantee to the citizens on the Right to Assemble Peaceably with a condition that the said guarantee from the infringement by State on the Right to Assemble Peaceably is without the Right to Keep and Bear Arms. It means the burden to justify the Right to Assemble Peaceably with arms would lie on the citizen. An example of such rights is The Punjab Village and Small Towns Patrol Act, 1918. Under this act, in order to do patrolling, citizens exercise 2 fundamental rights, right to assemble(peaceably as well as violently if situation compels) and the right to arms. If challenged by violent unlawful elements, the peaceful assembly with arms may transform into a violent assembly in order to safeguard their right to life. If the force of unlawful elements is greater than citizens, then the armed assembly of citizens may dissemble violently to safeguard their right to life. And such an assembly may also dissemble with arms peaceably if they are successful in overcoming the force of unlawful elements. But for exercise of such rights the Constitution is not taking the burden on itself to justify such rights on behalf of the citizens, neither is the Constitution getting offended. Instead the State is taking this burden to justify such rights of citizens, on itself on behalf of citizens under The Punjab Village and Small Towns Patrol Act, 1918.
Hence it is clear from above paragraph that the Article 19(1)b is not extinguishing any fundamental rights or preventing citizens from exercising any fundamental right(either guaranteed or not guaranteed). It is only conveying the meaning and condition of the guarantee provided by it, to its citizens, that the Right to Assemble Peaceably is guaranteed by the Constitution only if exercised without the Right to Keep and Bear Arms. This was probably done due to the kind of volatile conditions under which India gained independence. If Article 19(1)b would have been referring to only one right namely the Right to Assemble Peaceably and not acknowledging the presence of another right the Right to Keep and Bear Arms under Articles 19 and 21 then "and without arms" in Article 19(1)b is unnecessary. "to assemble peaceably;" would have been adequate to convey the intended meaning. The addition of words "and" and also "without arms" do not serve any help to the State for the purpose of restricting or regulating the rights guaranteed under Article 19(1)b, since it is only the Article 19(3) that is helping the State for imposing restrictions or regulations. If the Right to Keep and Bear Arms did not exist under Articles 19 and 21, in that case even in the absence of words "and without arms" the State would have been well within its rights to change the terms and conditions of arms licenses by a legislation or notification, from the strength derived from Article 19(3), thus completely prohibiting the taking of licensed arms to any assemblage without offending the Constitution. Hence it becomes clear that the words "and" and "without arms" are quite unnecessary in case the Right to Keep and Bear Arms does not exist under Part III of our Constitution BUT are very much necessary if the Right to Keep and Bear Arms exists under Articles 19 and 21.
The point that becomes abundantly clear from the above discussion is that under no circumstances does it become necessary for the Constitution to make exclusion within a fundamental right being guaranteed under Article 19(1)b, unless such an exclusion being made on arms in the Article 19(1)b, itself is also a guaranteed fundamental right under Part III, because of the fact that there is already a separate provision in the form of Article 19(3) to impose restrictions on those rights which do not constitute a guarantee on the fundamental rights within the scope and meaning of Article 19(1)b, and also on those rights which do not constitute a guarantee on the fundamental rights within the scope and meaning of rights guaranteed under part Part III of the Constitution.
Therefore if we read and understand the above discussion under point (i) in its entirety and completeness, it becomes abundantly clear from above reading that the need for placing a condition within a fundamental right being guaranteed, i.e. the excluding of one right, while guaranteeing another right in Article 19(1)b becomes unnecessary if the right being excluded does not exist as a fundamental right guaranteed under Part III!
(ii) Article 21 says: "Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law."
(iii) The enumeration in the Constitution, of certain rights cannot be construed to deny or disparage other rights retained by the people. Constitution has certainly prohibited things which it wanted to e.g. untouchability, titles etc., but at the same time it has not explicitly enumerated every right acknowledged under Part III. Examples: The Right to Freedom of Press, the Right to Information, the Right to Privacy, the Right to Self Defense etc. There are many rights under Part III which were not known to society even though they existed under Part III, but the awareness emerged in due course of time. The apex court has also held that many unenumerated rights also exist under Part III of the Constitution.
(iv) We have Sections 96 to 106 IPC for the Right of Private Defense which is a corollary to the Right of Self Defense under Article 21. Besides the Right to Keep and Bear Arms being a fundamental right, it is also a natural and a human right as well. Can the Constitution say that the Right to Self Defense exists under Article 21 but the right to the means of self defense does not exist and it has to be done with bare hands? No the Constitution cannot say that, thus the Right to Keep and Bear Arms exists under Article 21 and its existence also gets confirmation by the explicit exclusion of it from being used in conjunction with the Right to assemble peaceably under Article 19(1)b. The law enforcement machinery of State is keeping arms under the Right to Keep and Bear Arms under Articles 19 and 21 for self defense. If one creates a successful grievance in a court of law, against the police(or the law that allows the police to keep and bear arms, use the arms thus kept and borne to cause death and grievous hurt) under Part III of the Constitution, then under which Article of Constitution are you going to defend that law and the rights of police? Nothing but Articles 19 and 21. There are two types of law enforcement machinery, one is the law enforcement machinery of the State(Police etc.) and the other is the law enforcement machinery of the citizens in individual capacity. When the citizens use their right of self defense as explained under Sections 96 to 106 IPC with help of the Right to Keep and Bear Arms, they are doing nothing but acting as the law enforcement machinery in individual capacity.
(v) Moreover I would like to draw the attention to the fact that the Constitution is the supreme law, all the rights and laws flow from the Constitution. The Fundamental rights of the citizens and the State are both equal before the Constitution. All the fundamental rights of the citizens and the State flow from the Part III of the Constitution. If Articles 19 and 21 under Part III of the Constitution are not guaranteeing the Right to Keep and Bear Arms for the citizens, then they are also not guaranteeing the Right to Keep and Bear Arms for the State. Hence it cannot be said that the rights of citizens under the same Part III of the Constitution are unequal or different from those of the State for enforcing the laws created for the same Constitutionally guaranteed fundamental rights.
(vi) Article 25 says: "The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion." There is no doubt or confusion that kirpans are arms. If the Right to Keep and Bear Arms is not guaranteed by the Constitution and it is also treating all the citizens equally for the purpose of fundamental rights, then how can people professing Sikh religion enjoy the Right to Keep and Bear Arms by keeping and wearing kirpans, unless the Right to Keep and Bear Arms has also been equally guaranteed to all citizens under Articles 19 and 21 of the Constitution? Sikhs assemble peacably with kirpans for prayers, since Article 19(1)b is not taking the burden on itself to guarantee on behalf of citizens when they assemble peacably with arms, in order to ensure that State does not infringe on their Right to Keep and Bear Arms while congregating with kirpans for prayers, Article 25 has taken the burden on itself to provide guarantee on behalf of those professing Sikh religion. Also Article 25 has acknowledged a fact that Indians gave and still give an elevated importance to the Right to Keep and Bear Arms and have been treating them as a part of their religion and culture for ages.
(vii) The presence of the Right to Keep and Bear Arms under Article 21 in Part III of Constitution, besides getting confirmed by Article 19(1)b , Article 21 and Article 25 as discussed in points (i) till (vi) in their entirety and completeness above, gets further confirmation from the views expressed in the objectives of Arms Act 1959 and its provisions. If the State passes a law to co-ordinate(please refer point (xii)) the fundamental rights guaranteed by the Constitution, it cannot put the burden on the citizens to justify the exercise of those rights, for the simple reason that Constitution has already taken that burden for citizens by providing a guarantee for those rights. Hence the burden lies on the State to justify the placing of restrictions on the fundamental rights of the citizens.
(viii) Since the Right to Keep and Bear Arms is a right guaranteed under Constitution, one of the objectives of Arms Act 1959 puts the burden not on the citizen, but on the State. The objective states that:
"(b)(ii)(ii)that weapons for self defense are available for all citizens under licenses unless their antecedents or propensities do not entitle them for the privilege;".
The "privilege" referred in this objective is referring to the fundamental right guaranteed by our Constitution to ALL CITIZENS. Hence this objective cannot mean that it is putting a burden on ALL CITIZENS to provide a valid "reason" in order to have a license. Instead it means by the use of word UNLESS, that the State has been put under a burden to provide a valid "reason" for denying a license, so that the citizen can approach High Court to get his fundamental right enforced. This can be further ascertained from reading relevant Sections and clauses in Arms Act 1959, I am quoting the concerned clauses:
CHAPTER III - PROVISIONS RELATING TO LICENCES
13. Grant of licences
1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.
1*[(2) On receipt of an application, the licensing authority, after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same.
(3) The licensing authority shall grant---
(a) a licence under section 3 where the licence is required---
(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection:
What does word SHALL in the sentence "The licensing authority shall grant---" mean? It means a direction to issue a license if the applicant is not ineligible for license as per Section 14. It also means that the burden is not on the applicant to provide "reason" to get a license since it has been already taken on his behalf by the Constitution.
14. Refusal of licences
(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.
(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.
(ix) What does Section 14(2) of Arms Act 1959 mean? It means that if the applicant is not offending anything in Section 14 then only because he does not have sufficient property cannot become a reason to deny arms license.(Please note: this Section 14(2) was enacted so that the fundamental Right to Property explicitly guaranteed our Constitution at the time of enactment of Arms Act 1959 would not be offended. Since denying firearm only on the ground of lack of sufficient property would mean the applicant is being denied to acquire property(firearm is also a property))
(x) What does Section 14(3) of Arms Act 1959 mean? It means since it is the question of applicant's fundamental right, the burden to provide "reason" to refuse license lies on the State, so that in case the fundamental right to Right to Keep and Bear Arms guaranteed by our Constitution of the applicant is infringed, the applicant can approach High Court with the "reason" for refusal provided in writing, to get his right enforced which has been guaranteed by our Constitution.(Just as Section 14(2) was enacted to protect the fundamental right to property guaranteed by our Constitution, similarly Section 14(3) was enacted to protect the fundamental Right to Keep and Bear Arms under Article 21 of our Constitution)
(xi) Since the Right to Keep and Bear Arms is guaranteed under Article 21 as a fundamental and a human right by our Constitution, nowhere in the Arms Act 1959, there is any prohibition placed for the issue of arms license to any non citizen in India. This can be further ascertained by the reading of Arms Rules 1962 Rule 17 Traveller's (temporary) license and Rule 32 Bringing of Arms and Ammunition into India by bona fide tourists. They read as under:
17. Traveler’s (temporary) license
(1) Subject to the provisions of rule 8, a license in Form VIII may be granted to any bona fide traveler, proceeding from the place of his arrival of arms or ammunition for the duration of the journey, by the licensing authority at the place of arrival.
32. Bringing of Arms and Ammunition into India by bona fide tourists,-
(1) A license, for a period valid of six months from the date of endorsement referred to in sub-rule (I-A), may be granted in Form III to bona fide tourists referred to in clause (b) of the provisio to sub-section (I) of section 10, so far as practicable, six months prior to the expected date of arrival of the tourist in India;
(xii) I would also like to draw attention to one more objective of Arms Act 1959 which says:
"(c) to co-ordinate the rights of the citizen with the necessity of maintaining law and order and avoiding fifth-column activities in the country;"
If "the rights of the citizen" as mentioned above do not exist under Articles 19 and 21 of the Constitution, then the question of co-ordinating these rights for all the citizens does not arise. What does "to co-ordinate the rights of the citizen with the necessity of maintaining law and order" mean? Surely it does not mean co-ordinating the rights like the right to privacy, the rights to information or similar rights. It means nothing but co-ordinating the rights of Self Defense and the Right to Keep and Bear Arms necessary for maintaining law and order. In other words it can be said that Arms Act 1959 was passed not to curb or restrict gun ownership from citizens, but was passed to co-ordinate their fundamental rights and encourage gun ownership.
Hence from reading of all the above points (i) till (xii) in their entirety and completeness, it becomes abundantly clear that the Right to Keep and Bear Arms has been guaranteed by our Constitution under Article 21, since it is a natural right, a human right and also a fundamental right.
(xiii) Moreover if we read our background and history before the creation of present Constitution, it becomes even more clear that the Right to Keep and Bear Arms is indeed guaranteed by our Constitution. Throughout the freedom struggle our leaders protested against the Arms Act of 1878, demanding for every Indian citizen the right to keep and bear arms. For example in Nagpur around 1923 or 1924 there was a Satyagraha movement against the prevailing Arms Act. This movement attracted Satyagrahis from all over India, it went on for six months and the Indian National Congress put its seal of approval on this Satyagraha movement against the Arms Act. In fact even the Father of Nation, Mahatma Gandhi, protested for the right of every Indian citizen to keep and bear arms, going so far as to state that, “Among the many misdeeds of the British rule in India, history will look upon the Act depriving a whole nation of arms, as the blackest”.
(xiv) The Indian National Congress in it's historic 1931 Resolution on Fundamental Rights passed at Karachi stated “This Congress is of opinion that to enable the masses to appreciate what Swaraj as conceived by the Congress will mean to them, it is desirable to state the position of the Congress in a manner easily understood by them...” “...The Congress, therefore, declares that any constitution...” please note these words - any constitution, “...which may be agreed to on its behalf, should provide or enable the Swaraj Government to provide for the following...” and various fundamental rights are enumerated, among which was also this one-- “Every citizen has the right to keep and bear arms in accordance with regulations and reservations made in that behalf.”
(xv) Let us not forget that the Right to Keep and Bear Arms is, in order of importance, the first human right. It is Indian people's First Freedom, the one right that protects all of the other rights. All through our freedom struggle, our leaders were fighting for this human right and was promised to the nation to include its guarantee in "any constitution". Among freedoms of the speech and expression, of the assembly, of forming associations, of movement, of residence, of practice of any profession, of the religion, of the equality, it is the first among the equals. It alone offers the absolute capacity to live without fear. The right to keep and bear arms is the one right that allows all others to exist at all.
The Right to Keep and Bear Arms is among one of the most important human, natural and fundamental rights because its infringement can lead to infringement of various other fundamental rights as explained below:
(a) If the Right to Keep and Bear Arms is not being enjoyed, the Right to Self Defense under Article 21 also gets very severely affected.
(b) If the Right to Keep and Bear Arms is not being enjoyed, the rights under Article 19(1)d also get very severely affected. Example: If for any reason like you have to take family members especially children or ladies to hospital for emergency at night or you have to travel at night with children and ladies, life of all people including yourself will be at the mercy of criminal elements since Right to Keep and Bear Arms is not getting enjoyed. Hence you are also being forced to avoid enjoying your rights under Article 19(1)d.
(c) If the Right to Keep and Bear Arms is not getting enjoyed, the rights under Article 19(1)a are also getting affected, you are not able to openly speak or express your opinions against various types of dangerous persons since you will not be able to defend yourself or your near and dear ones if they decide to take the law in their own hands. In other words Freedom of Speech and Expression for people looses power in itself.
(d) If the Right to Keep and bear Arms is not getting enjoyed, the rights under Article 19(1)g are also getting affected, like you will not get employment as security guard.
(xvi) All Rights(whether enumerated or unenumerated) and laws flow from the Constitution only. The Legislature passes laws to:
a) Enable the rights. Example: RTI Act 2005 to enable Freedom of Expression under Article 19.
b) Regulate the rights. Example: The Passports Act 1967 to regulate Right to Life and Liberty. Arms Act 1959 to regulate Right to Keep and Bear Arms.
c) Protect the rights. Enacting penal laws to be used in case the rights are violated. Example: various penal laws like 302 IPC for murder(violation of right to life).
Please note: If any Right(e.g. Right to Keep and Bear Arms) does not exist under the Constitution, the question of enabling, regulating or protecting that right(e.g. Arms Act 1959) by the legislature does not arise.
Hence from reading of this entire document, including all the above points (i) till (xvi) in their entirety and completeness, it becomes abundantly clear that the Right to Keep and Bear Arms has been guaranteed by our Constitution under Articles 19 and 21, since it is a natural right, a human right and also a fundamental right.