Dear Sir/Madam,
The following objections and recommendations are in regards to comments solicited at https://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 (https://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 https://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 https://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.
