Aatmaraksha: In Defense Of Urgent Reformation Of Archaic And Strict Indian Gun Laws With Special Reference To The United States Of America's Laws And History
"The right of self-defense never ceases. It is among the most sacred, and
alike necessary to nations and to individuals." - James Monroe
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territories, 326 Indian reservations, and some minor possessions. The United States is a federal republic of 50 states, a federal district, five territories and several uninhabited island possessions. It is the world's oldest surviving federation. It is a federal republic and a representative democracy "in which majority rule is tempered by minority rights protected by law."
India, officially the Republic of India is a country in South Asia. India is a federation with a parliamentary system governed under the Constitution of India the country's supreme legal document. It is a constitutional republic and representative democracy, in which, similar to the USA, "majority rule is tempered by minority rights protected by law". Federalism in India defines the power distribution between the union and the states. India is a federal union comprising 28 states and 8 union territories.
Self-defense is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in times of danger is available in many jurisdictions
The term gun5 may refer to any sort of ranged projectile weapon from large cannons to small firearms including those that are usually hand-held (handgun), designed to use a shooting tube (gun barrel) to launch typically solid projectiles
In the United States1, access to guns is controlled by law under a number of federal statutes. These laws regulate the manufacture, trade, possession, transfer, record keeping, transport, and destruction of firearms, ammunition, and firearms accessories. They are enforced by state agencies and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In addition to federal gun laws, all state governments and some local governments have their own laws that regulate firearms. The right to keep and bear arms is protected by the Second Amendment to the United States Constitution. The Second Amendment states2:
"A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Indian law6 allows firearm possession on may-issue basis. With approximately five civilian firearms per 100 people, India is the 120th most armed country in the world. Prior to the Indian First War of Independence in 1857, there were few gun control laws in India. The Indian Arms Act, 1878 regulated the manufacture, sale, possession, and carriage of firearms. The act included the mandatory licensing to carry a weapon, but contained exclusions for some groups and persons, for instance "all persons of Kodava (Coorg) race". In 1959 the Arms Act was passed with new strict rules. It has been amended many times since, most recently in 2016.
Gun control8 (or firearms regulation) is the set of laws or policies that regulate the manufacture, sale, transfer, possession, modification, or use of firearms by civilians. Laws of some countries may afford civilians a right to keep and bear arms, and have more liberal gun laws than neighboring jurisdictions. Countries that regulate access to firearms will typically restrict access to certain categories of firearms and then restrict the categories of persons who may be granted a license for access to such firearms.
There may be separate licenses for hunting, sport shooting (a.k.a. target shooting), self-defense, collecting, and concealed carry, with different sets of requirements, permissions, and responsibilities. Gun laws are often enacted with the intention of reducing the use of small arms in criminal activity, specifying weapons perceived as being capable of inflicting the greatest damage and those most easily concealed, such as handguns and other short-barreled weapons.
Persons restricted from legal access to firearms may include those below a certain age or having a criminal record. Firearm licenses may be denied to those felt most at risk of harming themselves or others, such as persons with a history of domestic violence, alcohol use disorder or substance use disorder, mental illness, depression, or attempted suicide. Those applying for a firearm license may have to demonstrate competence by completing a gun-safety course and show provision for a secure location to store weapons.
It is the duty of every State to protect its citizens but no country, especially with its vast population, can afford to ensure protection to each and every citizen personally. Therefore, the right to self-defense is one that is recognized by every free nation in the world so that individuals can, in some instances, take law into their own hands for their safety.
Any act done in self-defense is not an offense and no person will be convicted for the same. However, for an act to be considered as one of self-defense, the danger must be immediate and real where the victim has no time to follow the legal recourse of alerting the local police7.
"Necessity knows no law" is a common saying which means that an act done out of necessity cannot be subjected to the rules of law. The right to self-defense is a mere extension of this and the test of necessity plays an important role in determining self-defense along with factors such as:
The sanctioned strength of the police across states was around 2.8 million in 2017 (the year with the latest available data) but only 1.9 million police officers were employed (a 30% vacancy rate). As a result, there are only 144 police officers for every 100,000 citizens (the commonly used measure of police strength), making India's police force one of the weakest in the world. India's police-to-population ratio lags behind most countries and the United Nations-recommended ratio of 222.
In 2018, a total of 50,74,634 cognizable crimes were registered in India according to the National Crime Records Bureau10, comprising 31,32,954 Indian Penal Code (IPC)11 crimes and 19,41,680 Special & Local Laws (SLL) crimes. The Cognizable offences are serious in nature such as Rape, Murder, Dowry death, Kidnapping, Theft, Criminal Breach of Trust, Waging or attempting to wage war or abetting the waging of war against the government in India.
More shockingly, Police records shows high incidence of crimes against women in India. Sexual assault against women in India is increasingly common. Despite a large population, statistically sexual assault in India is not rampant. According to the NCRB, as of 2018, the majority of crimes against women were registered under 'Cruelty by Husband or His Relatives' (31.9%) followed by 'Assault on Women with Intent to Outrage her Modesty' (27.6%), 'Kidnapping & Abduction of Women' (22.5%) and 'Rape' (10.3%).
The crime rate per lakh women population was 58.8 in 2018, as compared to 57.9 in 2017. As of 2016 there are 3,369,444 firearm licenses active in India with 9,700,000 firearms registered to them. According to Small Arms Survey there are 61,401,000 illegal firearms in India. There are around 3.22 gun homicides per 100,000 people in India every year. Around 90% of them are committed using illegal guns. The point I'm trying to make with these horrifying statistics is that it is absolutely the need of the hour for urgent reformation of archaic and strict gun laws which are frankly very colonial in nature.
In my own words, I feel that the only person who can stop a bad guy with a gun is a good guy with a gun. As shown above, the facts that our police force is inadequate, violent cognizable crimes are increasing, particularly against women and that regardless of the already strict gun laws in our country, criminals can just easily acquire desi homemade "kattas" to do their evil deeds creates a dangerous antisocial cocktail.
As such, there appears to be no justification to punish the common man by imposing on him colonial type gun laws, thus depriving him of his democratic right to defend himself and others. Indian gun control laws are quickly becoming a hotly debated topic in legal spheres, as to whether there is any justification of holding on to this tyrannical colonial relic.
The last decade has seen crime rates increasing rapidly, leading to renewed energy being put towards liberalization of our gun laws. In the pages that follow, it will be argued that we do indeed need an urgent reformation of archaic and strict gun laws. And keeping in mind the main focus of this subject, I shall end with the rules of interpretation and how I personally view this topic. The major objective of this paper was to address the disadvantages of strict gun laws, in particular the Arms Act, 1959 and validate my opinions through is presenting, analyzing, historically investigating and discussing the topic.
The right to bear arms in England existed before 1066. The tradition of militia, or groups of citizens trained to use weapons for defense, also existed in medieval England. English law required men who owned land to have weapons and serve in their baron's militia. But as new religious and political ideas emerged, the government began to limit the right to bear arms. By 1328, Parliament banned Englishmen from carrying arms in public.
After that, only the upper classes could own guns. The English Bill of Rights in 1689 also gave gun rights only to some people. While the English Bill of Rights said Protestants could own guns, it denied that right to the Catholic minority. The Bill of Rights 1689 allowed Protestant citizens of England to "have Arms for their Defense suitable to their Conditions and as allowed by Law" and restricted the ability of the English Crown to have a standing army or to interfere with Protestants' right to bear arms "when Papists were both Armed and Imployed contrary to Law" and established that Parliament, not the Crown, could regulate the right to bear arms.
Settlers in Colonial America4 viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists known as Patriots, who favored independence from British rule.
As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build-up, the British parliament established an embargo of firearms, parts and ammunition against the American colonies. King George III also began disarming individuals who were in the most rebellious areas in the 1760s and 1770s.
British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.
The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries.
Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men. Anti-federalists, on the other hand, took the side of limited government.
Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size. Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power
To clarify and explain further, the text of the Second Amendment12 reads in full: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The framers of the Bill of Rights adapted the wording of the amendment from nearly identical clauses in some of the original 13 state constitutions. During the Revolutionary War era, "militia" referred to groups of men who banded together to protect their communities, towns, colonies and eventually states, once the United States declared its independence from Great Britain in 1776.
Many people in America at the time believed governments used soldiers to oppress the people, and thought the federal government should only be allowed to raise armies (with full-time, paid soldiers) when facing foreign adversaries. For all other purposes, they believed, it should turn to part-time militias, or ordinary civilians using their own weapons. But as militias had proved insufficient against the British, the Constitutional Convention gave the new federal government the power to establish a standing army, even in peacetime.
However, opponents of a strong central government (known as Anti-Federalists) argued that this federal army deprived states of their ability to defend themselves against oppression. They feared that Congress might abuse its constitutional power of "organizing, arming and disciplining the Militia" by failing to keep militiamen equipped with adequate arms. So, shortly after the U.S. Constitution was officially ratified, James Madison proposed the Second Amendment as a way to empower these state militias.
While the Second Amendment did not answer the broader Anti-Federalist concern that the federal government had too much power, it did establish the principle (held by both Federalists and their opponents) that the government did not have the authority to disarm citizens.
Practically since its ratification, Americans have debated the meaning of the Second Amendment, with vehement arguments being made on both sides. The crux of the debate is whether the amendment protects the right of private individuals to keep and bear arms, or whether it instead protects a collective right that should be exercised only through formal militia units. Those who argue it is a collective right point to the "well-regulated Militia" clause in the Second Amendment.
They argue that the right to bear arms should be given only to organized groups, like the National Guard, a reserve military force that replaced the state militias after the Civil War. On the other side are those who argue that the Second Amendment gives all citizens, not just militias, the right to own guns in order to protect themselves. The National Rifle Association (NRA), founded in 1871, and its supporters have been the most visible proponents of this argument, and have pursued a vigorous campaign against gun control measures at the local, state and federal levels.
People in those times could roam around wielding their guns without any constraints. The kings and rulers often called upon the civilian militia to raise their arms in the wars between kingdoms. It was only until the advent of the British rulers that the rights of the Indians to carry guns and arms began to be restricted.
The British East India Company ruled over India from the year 1757 to 1858. During this period, India was not directly under the British Crown but autonomously controlled by the East India Company. In February 1857, a new gun powder cartridge was introduced for the Enfield rifle by the Company rulers for its military. The Company soldiers known as sepoys were mainly native Indians composed of both Hindus and Muslims.
A rumor spread among the sepoys that the new cartridges were made of cow and beef skin which triggered the religious sentiments of both the Hindu and Muslim soldiers. They protested against the use of those cartridges but the Company rulers were reluctant to hear the outcries of the sepoys and ordered them to use the cartridges or face dire consequences. The sepoys refused to obey the orders of the Company and revolted against them.
The Indian soldiers were joined by ordinary people who suffered the exploitation and atrocities of the British rulers. The revolt grew stronger as more people joined in and a mass movement against the British broke out which is referred to by many as the First Indian War of Independence.
After the Indian sepoys and the people began to revolt against the rule of the British East India Company, the British establishment in India was threatened for the first time. Therefore, several catastrophic changes started to take place in the administration of India. Due to the events of the Sepoy Mutiny, the administration and governance of India was brought under the direct control of the British Crown.
In 1858, Queen Victoria made a proclamation in which she declared, "We hold ourselves bound to the natives of our Indian territories by the same obligation of duty which binds us to all our other subjects". Thus, the British rule of India was established and the period from 1858-1947 came to be known as The British Raj. In the aftermath of the Sepoy Mutiny, the British Government undertook various drastic measures to prevent any such rebellions in the future.
No proper gun control laws existed in India during the Company rule. Although there were a few rules and regulations, they were limited in application and were not properly enforced by the erstwhile rulers. Indians could own and possess any guns and rifles of any class and description. During those times, the British were least concerned about guns in the hands of ordinary citizens. However, the events of the Sepoy revolt made the British aware of the dangers of guns in the hand of the Indian subjects and therefore regulations began to be introduced to prohibit Indians from possessing guns.
In 1876, Robert Bulwer-Lytton13 was appointed as the Viceroy of India by the Crown. Lord Lytton suggested the need for gun control laws in India to prevent any uprisings against the British Rule.To give effect to such legislation, Lord Lytton appointed a committee to make recommendations and frame out the diagram for gun control legislation in India. The committee in its findings concluded that local Indians should have restricted access to arms and weapons.
The recommendations of the committee resulted in the enactment of the Arms Act of 1877. The main aim of the Arms Act of 1877 was to restrict and limit arms and guns in the hands of the Indian subjects. The Act introduced the system of gun licenses which allowed Indians to own and possess guns. The British were very selective in giving such licenses and only those who were loyal to the crown were provided with such licenses. Furthermore, the British rulers, Anglo-Indian subjects as well as government officials and servants were exempted from the purview of the Act.
The Act extended to all the Indian territories of the British Empire but the independent states who accepted the British sovereignty were exempted from the purview of the Act. However, the independent states like Hyderabad and Mysore were directed by the British to follow strict rules to limit guns in the possession of their subjects.
The Arms Act, 1877 was the first gun control legislation of its kind in India. The Act was considered by the British to be fair, rational, and necessary to maintain peace and security in the country. The Act gave superior powers to the British Government by which they could restrict, prohibit and confiscate guns and arms in the possession of its subjects as well as punish them.
The government also exercised discretion in issuing gun licenses and in almost all cases licenses were only issued to those who were boot-lickers of the British government. However, the passing of the Arms Act, 1877 was not taken positively by the Indians. The Indians opposed the efforts made by the British to disarm them through the Act. The Act was considered by many Indians as an unjust legislation that was put into effect to further the ulterior motive of the British to cement their dominance in the Indian subcontinent and ensure that the Indian subjects become defenseless and impotent against the British oppression.
The Indian arms act of 1878 was successful in controlling proliferation of guns in India and hardly .5% of Indians were issued gun licenses. In a way unrestrained owning of guns as protected by the 2nd amendment in the USA never happened. The British evidently learnt from their mistakes in Colonial America were thus successful in keeping the local Indian population unarmed.
Mahatma Gandhi has voiced his disapproval of the Arms Act. He stated, "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." This statement was made by Gandhi in opposition to the Arms Act and about the World War I recruitment urging all able-bodied Indians to fight with the British in the war instead of fighting against them.
English Historian David Arnold was of the view that "the colonial rulers very well knew the importance of metal-working in helping the Indians in the production of arms and ammunition, and with the introduction of the Arms Act in 1878, they restricted Indians from accessing firearms, and tried to restrict India's mining and work metals to prevent the outbreak of wars and rebellions."
The Arms Act, 1877 introduced gun regulations in India and was successful in furthering the British objectives of limiting and restricting gun possession in India. As a result of the regulations introduced by the Act less than 5% of Indians were issued licenses to firearms. The Act enabled the British to keep the Indian subjects unarmed and thereby preventing any armed rebellion like the Sepoy Mutiny to take place in the future.
In the pre-independence period, some Indian leaders such as Motilal Nehru and Subhash Chandra Bose were in favor of reforms in gun regulations. In 1928, the Motilal Nehru Report put forward a list consisting of Fundamental Rights which also included "The Right to Bear Arms". In the Karachi Resolution of 1931, The Indian National Congress suggested and accepted a list of fundamental rights including the Right to Keep and Bear Arms which were proposed to be included in the Constitution of free India. However, the framers of the Constitution did not include the Right to Keep and Bear Arms as a fundamental right while framing and adopting the Constitution.
Unfortunately, the Indian Constitution today has no mention of this right. In fact, the oppressive Indian Arms Act of 1878 was only replaced with a new one as late as 1959. So, why and what happened that caused the founders suddenly lose interest in a "fundamental right" that they were so passionate about for decades preceding freedom?
To understand this, we need to understand the context in which members of India's constituent assembly had to work. In early 1947, a sub-committee had drawn up a list of fundamental rights that included the right to bear arms. This list was then sent to an advisory committee, chaired by Sardar Patel, that met in Delhi on 21 and 22 April 1947. In the months leading up to that meeting, appalling communal violence had left hundreds of dead in Bengal and Punjab. Partition seemed imminent and Patel, perhaps, had all but given up hope of a unified subcontinent.
Delhi itself was under curfew as Patel and the others met. And as they looked at the carnage around them, they appeared to have lost appetite for gun rights. Syama Prasad Mookerjee wanted to keep it in the list. But Patel refused: "In the present state of our society (this) will be a dangerous thing." A suggestion to leave it to individual states was shot down by B.R. Ambedkar, who warned that states might go to war with each other.
And thus, the right to bear arms was dropped from India's Constitution. It came up for discussion again in the assembly. H.V. Kamath, the member for Central Provinces and Berar, delivered a rather passionate defense of the right in December 1948. But there was little real enthusiasm. The Chairman of the Constitution Drafting Committee, Dr. B.R. Ambedkar was of the view that such right was only necessary and relevant when India was under the rule of the British Empire but such demand has no relevance in free India.
The Arms Act, 1877 remained in force for almost 82 years even after the Indian independence. The Act of 1877 was amended by the Government of India to remove its shortcomings and make it applicable to the needs of free India. In 1959, the Government of India enacted the Arms Act, 1959 by which the Act of 1877 was repealed. The effects of the Arms Act, 1877 is still prevalent in India as the Constitution of India does not recognize the fundamental right of the people to keep and bear arms like the United States where the Second Amendment of the United States Constitution gives this right to the American citizens.
Also, the Act seek to classify firearms and other prohibited weapons so as to ensure:
In the case of Ganesh Chandra Bhatt v Distt Magistrate, Almora &Ors. (AIR 1993 All. 291), Justice Katju had taken the above view. In this case, the petitioner had applied for the license of a revolver. Even after fulfilling all the necessary formalities for obtaining a clearance, license was not granted.
The petitioner approached the Allahabad High Court. Justice Katju in this particular case ruled that if an application has been made for a weapon which does not come under the category of prohibited weapons, and if three months have passed and there has been no communication, it would be deemed that the license has been granted by the government.
He opined that the right to bear arms is included in the right to self-defence, which being a natural right should come within the boundaries of Article 21 which talks about right to life. He mentioned that worshipping firearms during Diwali and Dussehra and using fire arms in Mahabharata illustrates that this right is related to the dignity and self-respect of the citizen and right to life with dignity is guaranteed by Article 21.
The procedure for granting of gun licenses on the ground of self-defence is extremely difficult and stringent, therefore they are allowed in extremely special cases, a person applying for the license must have a strong reason and must have filed a First Information Report (FIR) prior to the application. In India, the strict conditions, corruption and arbitrariness related to obtaining gun licences means that in utter contrast to other democratic countries, obtaining a license is treated as an exclusive privilege instead of a common occurrence.
Within India, just like all other aspects of daily life, obtaining a gun license is far easier if you're a well-connected politician, wealthy man, powerful and influential man etc. If you're part of the 99% of ordinary Indians desperate for a proper means of defense, in exercise of IPC Section 96 to 106 of the penal code which states the law relating to the right of private defense of person and property, under the current Kafkaesque system, you're better off buying unsafe desi shoddily made "kattas"
As we can see here, Law states14 that license can be issued for anyone who has good reason without stipulating what constitutes a good reason. This is very vague and leaves room for executive tyranny and arbitrariness. Let's create a realistic hypothetical situation. Say for instance, there are communal riots in a disturbed area. People are marching about wielding swords and illegally acquired guns and are on the prowl. They pose a threat to you and your family and hence you need a gun.
You file an application and are then interviewed by the DCP. But this DCP is very biased and bears hatred towards your community. As such, even if you're eligible, he may not grant you a license as article 14. states that authorities can deny license for unspecified "public peace or for public safety" reasons. They are not obligated to give reason for refusal of application if they deem it to be necessary. This is clear executive tyrannical arbitrariness and should not be tolerated in a "free" country like India.
For this section, I will use the Mischief rule to prove the illegitimacy of the Arms Act 1959.
The rule was first set out in Heydon's Case [1584] 76 ER 637 3 CO REP 7a, where the court held that four points should be taken into consideration:
For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:
It is the duty of Courts to construct the statute in such a way to suppress the mischief and encourage the remedy according to the intention of the legislature.
Two important formulas related to mischief are:
Let's begin by answering the 4 questions:
By this fundamental right, every American citizen has the right to acquire and possess guns and firearms and finally to the racist and oppressive arms act 1878, which put everyday Indians at risk from getting harassed from the British colonizers, leading to some Indian leaders such as Motilal Nehru and Subhash Chandra Bose to be in favor of reforms in gun regulations. Further, In 1928, the Motilal Nehru Report put forward a list consisting of Fundamental Rights which also included "The Right to Bear Arms".
Thereafter, The Indian National Congress suggested and accepted a list of fundamental rights including the Right to Keep and Bear Arms which were proposed to be included in the Constitution of free India. However, the framers of the Constitution did not include the Right to Keep and Bear Arms as a fundamental right while framing and adopting the Constitution. The Chairman of the Constitution Drafting Committee, Dr. B.R. Ambedkar was of the view that such right was only necessary and relevant when India was under the rule of the British Empire but such demand has no relevance in free India. Unfortunately, The Arms Act, 1878 remained in force for almost 82 years even after the Indian independence.
The Colonial Act of 1878 was amended by the Government of India to remove its shortcomings and make it applicable to the needs of free India. In 1959, the Government of India enacted the Arms Act, 1959 by which the Act of 1878 was repealed.
Evidently, the effects of the Arms Act, 1878 is still prevalent in India as the Constitution of India does not recognize the fundamental right of the people to keep and bear arms like the United States where the Second Amendment of the United States Constitution gives this right to the American citizens. Taking into consideration all the aforementioned historical information, It can be justifiably assumed that the actual reason for the remedy
Is to:
Furthermore, the British rulers, Anglo-Indian subjects as well as government officials and servants were exempted from the purview of the Act. In terms of the more recent act, we can see similarities. Although the modern act adorns a veil of fairness, the ground reality is that due to the inherent strictness of the act, the government is also very selective in providing the privilege of owning guns.
Just like in all aspects of the bureaucracy, only the rich and influential can acquire this privilege easily, leading to an imbalance of power between them and the rest of Indian citizens. Regular citizens, desperate for safety, are forced to purchase cheap dangerous improvised firearms for their safety, often risking their own safety as the guns are prone to unpredictable explosions.
The true intent of the arms act is tyranny, plain and simple. The Arms Act, 1877 introduced gun regulations in India and was successful in furthering the British objectives of limiting and restricting gun possession in India. With approximately five civilian firearms per 100 people, India is the 120th most armed country in the world. Thus, we can also say the 1959 act was successful in its objective of monopolizing firepower in the hands of the state.
Conclusion
When man existed in the State of Nature, the rule was 'survival of the fittest' and there was an absolute right to self-defense. However, with the advent of modern democracies, this right is still recognized but it is subject to some restrictions. The right to private defense is essential but since the ambit is so wide it is hard to decide whether the act was actually done in good faith and in the exercise of self-defense rather than malice or with the intention to cause harm.
It is the first duty of man to help himself. The right of self-defense must be fostered in the citizens of every free country. The right is recognized in every system of law and its extent varies in the inverse ratio to the capacity of the state to protect life and property of the subject(citizens).
It is the primary duty of the state to protect the life and property of the individuals, but no state, no matter how large its resources, can afford to designate a policeman to follow every criminal in the country. Consequently, this right has been given by the state to every citizen of the country to take law into his own hand for their safety.
In recent times, efforts and initiatives have been made by pro-gun groups to make gun laws more liberal and permissive. Their main contention is that due to the ever-increasing crimes such as murders, rape, armed robbery, extortion, and terrorism, the need for guns for self-defense and protection of person and property has become a necessity.
They also are of the view that the restrictions on gun ownership and possession under the current laws do not hold ground in independent India as these laws have been the adaptation and continuation of the oppressive gun regulations of the British rulers. These gun rights activists are trying to bring gun law reforms in the country through various initiatives and assertions.
Debates have been made illustrating how the offender can obtain a gun even without a permit to commit crimes through stringent laws exist; while the victim cannot defend himself as the laws apply unfavorably upon the innocent.
The Soviet government had initially made it a point to "arm the working people" in the Declaration of the Rights of Working and Exploited People in January 1918. The December decree of the CPC of 1918, "On the surrender of weapons", ordered people to surrender any firearms, swords, bayonets and bombs, regardless of the degree of serviceability. The penalty for not doing so was ten years' imprisonment.
On December 12, 1924, the Central Executive Committee of the USSR promulgated its degree "On the procedure of production, trade, storage, use, keeping and carrying firearms, firearm ammunition, explosive projectiles and explosives", all weapons were classified and divided into categories. Now the weapons permitted for personal possession by ordinary citizens could only be smoothbore hunting shotguns.
The other category of weapons were only possessed by those who were put on duty by the Soviet state; for all others, access to these weapons was restricted to within state-regulated shooting ranges. Illegal gun possession was severely punished.
Few German citizens owned, or were entitled to own firearms in Germany in the early 1930s, the Weimar Republic having strict gun control laws. When the Nazi party gained power, some aspects of gun regulation were loosened, such as allowing firearm ownership for Nazi party members and the military. The laws were tightened in other ways. Nazi laws systematically disarmed so-called "unreliable" persons, especially Jews, but relaxed restrictions for "ordinary" German citizens.
The policies were later expanded to include the confiscation of arms in occupied countries. Adolf Hitler once said "the most foolish mistake we could possibly make would be to allow the subject races to possess arms. It is frequently argued that these laws, which resulted in the confiscation of weapons not belonging to supporters of the Nazis, rendered the Jews and other disfavored groups like the Gypsies, Slavs, Poles, and their potential allies defenseless and set the stage for the slaughter of the Holocaust that followed.
Yet another valid point that I'm trying to make by bringing up examples of two brutal authoritarian regimes is that If India truly is a free democratic country, there shouldn't exist laws that mirror that of the above regimes. If, God forbid, tomorrow we face a coup d'�tat, our citizens d be left vulnerable to a brutal regime. Winston Churchill once said "Those that fail to learn from history, are doomed to repeat it."
Gun possession and15 usage has always been a subject of critical legal scrutiny and controversy in India. The gun laws and policies in India have been considered by many thinkers and gun rights activists as being one of the most stringent and rigid gun regulations in the world. The essence of the old laws relating to guns which prevailed during the British Raj has been incorporated by the Indian government under the umbrella of new gun control policies after independence
To conclude, The major objective of this paper was to address the disadvantages of strict gun laws, in particular the Arms Act, 1959 and validate my opinions through is presenting, analyzing, historically investigating and discussing the topic. I have done that by providing and analysing the history of gun laws from its origin in England to the second amendment in America and then finally the oppressive gun laws under the British Raj, which unfortunately was repeated in Independent India.
Then I analysed, interpreted and constructed the problematic provisions of the arms act, showing its true intentions and irrelevance in a free country like India. The present study makes several noteworthy contributions to the pro gun law reform movement in India.
According to me, a reasonable approach to tackle this strict gun law issue could be to:
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territories, 326 Indian reservations, and some minor possessions. The United States is a federal republic of 50 states, a federal district, five territories and several uninhabited island possessions. It is the world's oldest surviving federation. It is a federal republic and a representative democracy "in which majority rule is tempered by minority rights protected by law."
India, officially the Republic of India is a country in South Asia. India is a federation with a parliamentary system governed under the Constitution of India the country's supreme legal document. It is a constitutional republic and representative democracy, in which, similar to the USA, "majority rule is tempered by minority rights protected by law". Federalism in India defines the power distribution between the union and the states. India is a federal union comprising 28 states and 8 union territories.
Self-defense is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in times of danger is available in many jurisdictions
The term gun5 may refer to any sort of ranged projectile weapon from large cannons to small firearms including those that are usually hand-held (handgun), designed to use a shooting tube (gun barrel) to launch typically solid projectiles
In the United States1, access to guns is controlled by law under a number of federal statutes. These laws regulate the manufacture, trade, possession, transfer, record keeping, transport, and destruction of firearms, ammunition, and firearms accessories. They are enforced by state agencies and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In addition to federal gun laws, all state governments and some local governments have their own laws that regulate firearms. The right to keep and bear arms is protected by the Second Amendment to the United States Constitution. The Second Amendment states2:
"A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Indian law6 allows firearm possession on may-issue basis. With approximately five civilian firearms per 100 people, India is the 120th most armed country in the world. Prior to the Indian First War of Independence in 1857, there were few gun control laws in India. The Indian Arms Act, 1878 regulated the manufacture, sale, possession, and carriage of firearms. The act included the mandatory licensing to carry a weapon, but contained exclusions for some groups and persons, for instance "all persons of Kodava (Coorg) race". In 1959 the Arms Act was passed with new strict rules. It has been amended many times since, most recently in 2016.
Gun control8 (or firearms regulation) is the set of laws or policies that regulate the manufacture, sale, transfer, possession, modification, or use of firearms by civilians. Laws of some countries may afford civilians a right to keep and bear arms, and have more liberal gun laws than neighboring jurisdictions. Countries that regulate access to firearms will typically restrict access to certain categories of firearms and then restrict the categories of persons who may be granted a license for access to such firearms.
There may be separate licenses for hunting, sport shooting (a.k.a. target shooting), self-defense, collecting, and concealed carry, with different sets of requirements, permissions, and responsibilities. Gun laws are often enacted with the intention of reducing the use of small arms in criminal activity, specifying weapons perceived as being capable of inflicting the greatest damage and those most easily concealed, such as handguns and other short-barreled weapons.
Persons restricted from legal access to firearms may include those below a certain age or having a criminal record. Firearm licenses may be denied to those felt most at risk of harming themselves or others, such as persons with a history of domestic violence, alcohol use disorder or substance use disorder, mental illness, depression, or attempted suicide. Those applying for a firearm license may have to demonstrate competence by completing a gun-safety course and show provision for a secure location to store weapons.
It is the duty of every State to protect its citizens but no country, especially with its vast population, can afford to ensure protection to each and every citizen personally. Therefore, the right to self-defense is one that is recognized by every free nation in the world so that individuals can, in some instances, take law into their own hands for their safety.
Any act done in self-defense is not an offense and no person will be convicted for the same. However, for an act to be considered as one of self-defense, the danger must be immediate and real where the victim has no time to follow the legal recourse of alerting the local police7.
"Necessity knows no law" is a common saying which means that an act done out of necessity cannot be subjected to the rules of law. The right to self-defense is a mere extension of this and the test of necessity plays an important role in determining self-defense along with factors such as:
- Clear and present danger
- Imminence of harm to person or property
The sanctioned strength of the police across states was around 2.8 million in 2017 (the year with the latest available data) but only 1.9 million police officers were employed (a 30% vacancy rate). As a result, there are only 144 police officers for every 100,000 citizens (the commonly used measure of police strength), making India's police force one of the weakest in the world. India's police-to-population ratio lags behind most countries and the United Nations-recommended ratio of 222.
In 2018, a total of 50,74,634 cognizable crimes were registered in India according to the National Crime Records Bureau10, comprising 31,32,954 Indian Penal Code (IPC)11 crimes and 19,41,680 Special & Local Laws (SLL) crimes. The Cognizable offences are serious in nature such as Rape, Murder, Dowry death, Kidnapping, Theft, Criminal Breach of Trust, Waging or attempting to wage war or abetting the waging of war against the government in India.
More shockingly, Police records shows high incidence of crimes against women in India. Sexual assault against women in India is increasingly common. Despite a large population, statistically sexual assault in India is not rampant. According to the NCRB, as of 2018, the majority of crimes against women were registered under 'Cruelty by Husband or His Relatives' (31.9%) followed by 'Assault on Women with Intent to Outrage her Modesty' (27.6%), 'Kidnapping & Abduction of Women' (22.5%) and 'Rape' (10.3%).
The crime rate per lakh women population was 58.8 in 2018, as compared to 57.9 in 2017. As of 2016 there are 3,369,444 firearm licenses active in India with 9,700,000 firearms registered to them. According to Small Arms Survey there are 61,401,000 illegal firearms in India. There are around 3.22 gun homicides per 100,000 people in India every year. Around 90% of them are committed using illegal guns. The point I'm trying to make with these horrifying statistics is that it is absolutely the need of the hour for urgent reformation of archaic and strict gun laws which are frankly very colonial in nature.
In my own words, I feel that the only person who can stop a bad guy with a gun is a good guy with a gun. As shown above, the facts that our police force is inadequate, violent cognizable crimes are increasing, particularly against women and that regardless of the already strict gun laws in our country, criminals can just easily acquire desi homemade "kattas" to do their evil deeds creates a dangerous antisocial cocktail.
As such, there appears to be no justification to punish the common man by imposing on him colonial type gun laws, thus depriving him of his democratic right to defend himself and others. Indian gun control laws are quickly becoming a hotly debated topic in legal spheres, as to whether there is any justification of holding on to this tyrannical colonial relic.
The last decade has seen crime rates increasing rapidly, leading to renewed energy being put towards liberalization of our gun laws. In the pages that follow, it will be argued that we do indeed need an urgent reformation of archaic and strict gun laws. And keeping in mind the main focus of this subject, I shall end with the rules of interpretation and how I personally view this topic. The major objective of this paper was to address the disadvantages of strict gun laws, in particular the Arms Act, 1959 and validate my opinions through is presenting, analyzing, historically investigating and discussing the topic.
The History Of Colonialism And Guns Shared By The USA And India
The Origin Of 2nd Amendment And Its Impact In Early USA
The right to bear arms in England existed before 1066. The tradition of militia, or groups of citizens trained to use weapons for defense, also existed in medieval England. English law required men who owned land to have weapons and serve in their baron's militia. But as new religious and political ideas emerged, the government began to limit the right to bear arms.The right to bear arms in England existed before 1066. The tradition of militia, or groups of citizens trained to use weapons for defense, also existed in medieval England. English law required men who owned land to have weapons and serve in their baron's militia. But as new religious and political ideas emerged, the government began to limit the right to bear arms. By 1328, Parliament banned Englishmen from carrying arms in public.
After that, only the upper classes could own guns. The English Bill of Rights in 1689 also gave gun rights only to some people. While the English Bill of Rights said Protestants could own guns, it denied that right to the Catholic minority. The Bill of Rights 1689 allowed Protestant citizens of England to "have Arms for their Defense suitable to their Conditions and as allowed by Law" and restricted the ability of the English Crown to have a standing army or to interfere with Protestants' right to bear arms "when Papists were both Armed and Imployed contrary to Law" and established that Parliament, not the Crown, could regulate the right to bear arms.
Settlers in Colonial America4 viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):
- Enabling The People To Organize A Militia System
- Participating In Law Enforcement
- Safeguarding Against Tyrannical Governments
- Repelling Invasion
- Suppressing Insurrection, Allegedly Including Slave Revolts
- Facilitating A Natural Right Of Self-Defense
During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists known as Patriots, who favored independence from British rule.
As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build-up, the British parliament established an embargo of firearms, parts and ammunition against the American colonies. King George III also began disarming individuals who were in the most rebellious areas in the 1760s and 1770s.
British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.
The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries.
Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men. Anti-federalists, on the other hand, took the side of limited government.
Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size. Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power
To clarify and explain further, the text of the Second Amendment12 reads in full: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The framers of the Bill of Rights adapted the wording of the amendment from nearly identical clauses in some of the original 13 state constitutions. During the Revolutionary War era, "militia" referred to groups of men who banded together to protect their communities, towns, colonies and eventually states, once the United States declared its independence from Great Britain in 1776.
Many people in America at the time believed governments used soldiers to oppress the people, and thought the federal government should only be allowed to raise armies (with full-time, paid soldiers) when facing foreign adversaries. For all other purposes, they believed, it should turn to part-time militias, or ordinary civilians using their own weapons. But as militias had proved insufficient against the British, the Constitutional Convention gave the new federal government the power to establish a standing army, even in peacetime.
However, opponents of a strong central government (known as Anti-Federalists) argued that this federal army deprived states of their ability to defend themselves against oppression. They feared that Congress might abuse its constitutional power of "organizing, arming and disciplining the Militia" by failing to keep militiamen equipped with adequate arms. So, shortly after the U.S. Constitution was officially ratified, James Madison proposed the Second Amendment as a way to empower these state militias.
While the Second Amendment did not answer the broader Anti-Federalist concern that the federal government had too much power, it did establish the principle (held by both Federalists and their opponents) that the government did not have the authority to disarm citizens.
Practically since its ratification, Americans have debated the meaning of the Second Amendment, with vehement arguments being made on both sides. The crux of the debate is whether the amendment protects the right of private individuals to keep and bear arms, or whether it instead protects a collective right that should be exercised only through formal militia units. Those who argue it is a collective right point to the "well-regulated Militia" clause in the Second Amendment.
They argue that the right to bear arms should be given only to organized groups, like the National Guard, a reserve military force that replaced the state militias after the Civil War. On the other side are those who argue that the Second Amendment gives all citizens, not just militias, the right to own guns in order to protect themselves. The National Rifle Association (NRA), founded in 1871, and its supporters have been the most visible proponents of this argument, and have pursued a vigorous campaign against gun control measures at the local, state and federal levels.
History of guns and its laws in India
Before the colonial rule in India, the Indians were able to freely possess guns and weapons. During those times gun possession was for protection as well as a symbol of respect and tradition. The kings and rulers of the princely states did not consider it to be necessary to restrict gun possession in the hands of their subjects.People in those times could roam around wielding their guns without any constraints. The kings and rulers often called upon the civilian militia to raise their arms in the wars between kingdoms. It was only until the advent of the British rulers that the rights of the Indians to carry guns and arms began to be restricted.
The British East India Company ruled over India from the year 1757 to 1858. During this period, India was not directly under the British Crown but autonomously controlled by the East India Company. In February 1857, a new gun powder cartridge was introduced for the Enfield rifle by the Company rulers for its military. The Company soldiers known as sepoys were mainly native Indians composed of both Hindus and Muslims.
A rumor spread among the sepoys that the new cartridges were made of cow and beef skin which triggered the religious sentiments of both the Hindu and Muslim soldiers. They protested against the use of those cartridges but the Company rulers were reluctant to hear the outcries of the sepoys and ordered them to use the cartridges or face dire consequences. The sepoys refused to obey the orders of the Company and revolted against them.
The Indian soldiers were joined by ordinary people who suffered the exploitation and atrocities of the British rulers. The revolt grew stronger as more people joined in and a mass movement against the British broke out which is referred to by many as the First Indian War of Independence.
After the Indian sepoys and the people began to revolt against the rule of the British East India Company, the British establishment in India was threatened for the first time. Therefore, several catastrophic changes started to take place in the administration of India. Due to the events of the Sepoy Mutiny, the administration and governance of India was brought under the direct control of the British Crown.
In 1858, Queen Victoria made a proclamation in which she declared, "We hold ourselves bound to the natives of our Indian territories by the same obligation of duty which binds us to all our other subjects". Thus, the British rule of India was established and the period from 1858-1947 came to be known as The British Raj. In the aftermath of the Sepoy Mutiny, the British Government undertook various drastic measures to prevent any such rebellions in the future.
No proper gun control laws existed in India during the Company rule. Although there were a few rules and regulations, they were limited in application and were not properly enforced by the erstwhile rulers. Indians could own and possess any guns and rifles of any class and description. During those times, the British were least concerned about guns in the hands of ordinary citizens. However, the events of the Sepoy revolt made the British aware of the dangers of guns in the hand of the Indian subjects and therefore regulations began to be introduced to prohibit Indians from possessing guns.
In 1876, Robert Bulwer-Lytton13 was appointed as the Viceroy of India by the Crown. Lord Lytton suggested the need for gun control laws in India to prevent any uprisings against the British Rule.To give effect to such legislation, Lord Lytton appointed a committee to make recommendations and frame out the diagram for gun control legislation in India. The committee in its findings concluded that local Indians should have restricted access to arms and weapons.
The recommendations of the committee resulted in the enactment of the Arms Act of 1877. The main aim of the Arms Act of 1877 was to restrict and limit arms and guns in the hands of the Indian subjects. The Act introduced the system of gun licenses which allowed Indians to own and possess guns. The British were very selective in giving such licenses and only those who were loyal to the crown were provided with such licenses. Furthermore, the British rulers, Anglo-Indian subjects as well as government officials and servants were exempted from the purview of the Act.
The Act extended to all the Indian territories of the British Empire but the independent states who accepted the British sovereignty were exempted from the purview of the Act. However, the independent states like Hyderabad and Mysore were directed by the British to follow strict rules to limit guns in the possession of their subjects.
The Arms Act, 1877 was the first gun control legislation of its kind in India. The Act was considered by the British to be fair, rational, and necessary to maintain peace and security in the country. The Act gave superior powers to the British Government by which they could restrict, prohibit and confiscate guns and arms in the possession of its subjects as well as punish them.
The government also exercised discretion in issuing gun licenses and in almost all cases licenses were only issued to those who were boot-lickers of the British government. However, the passing of the Arms Act, 1877 was not taken positively by the Indians. The Indians opposed the efforts made by the British to disarm them through the Act. The Act was considered by many Indians as an unjust legislation that was put into effect to further the ulterior motive of the British to cement their dominance in the Indian subcontinent and ensure that the Indian subjects become defenseless and impotent against the British oppression.
The Indian arms act of 1878 was successful in controlling proliferation of guns in India and hardly .5% of Indians were issued gun licenses. In a way unrestrained owning of guns as protected by the 2nd amendment in the USA never happened. The British evidently learnt from their mistakes in Colonial America were thus successful in keeping the local Indian population unarmed.
Mahatma Gandhi has voiced his disapproval of the Arms Act. He stated, "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." This statement was made by Gandhi in opposition to the Arms Act and about the World War I recruitment urging all able-bodied Indians to fight with the British in the war instead of fighting against them.
English Historian David Arnold was of the view that "the colonial rulers very well knew the importance of metal-working in helping the Indians in the production of arms and ammunition, and with the introduction of the Arms Act in 1878, they restricted Indians from accessing firearms, and tried to restrict India's mining and work metals to prevent the outbreak of wars and rebellions."
The Arms Act, 1877 introduced gun regulations in India and was successful in furthering the British objectives of limiting and restricting gun possession in India. As a result of the regulations introduced by the Act less than 5% of Indians were issued licenses to firearms. The Act enabled the British to keep the Indian subjects unarmed and thereby preventing any armed rebellion like the Sepoy Mutiny to take place in the future.
In the pre-independence period, some Indian leaders such as Motilal Nehru and Subhash Chandra Bose were in favor of reforms in gun regulations. In 1928, the Motilal Nehru Report put forward a list consisting of Fundamental Rights which also included "The Right to Bear Arms". In the Karachi Resolution of 1931, The Indian National Congress suggested and accepted a list of fundamental rights including the Right to Keep and Bear Arms which were proposed to be included in the Constitution of free India. However, the framers of the Constitution did not include the Right to Keep and Bear Arms as a fundamental right while framing and adopting the Constitution.
Unfortunately, the Indian Constitution today has no mention of this right. In fact, the oppressive Indian Arms Act of 1878 was only replaced with a new one as late as 1959. So, why and what happened that caused the founders suddenly lose interest in a "fundamental right" that they were so passionate about for decades preceding freedom?
To understand this, we need to understand the context in which members of India's constituent assembly had to work. In early 1947, a sub-committee had drawn up a list of fundamental rights that included the right to bear arms. This list was then sent to an advisory committee, chaired by Sardar Patel, that met in Delhi on 21 and 22 April 1947. In the months leading up to that meeting, appalling communal violence had left hundreds of dead in Bengal and Punjab. Partition seemed imminent and Patel, perhaps, had all but given up hope of a unified subcontinent.
Delhi itself was under curfew as Patel and the others met. And as they looked at the carnage around them, they appeared to have lost appetite for gun rights. Syama Prasad Mookerjee wanted to keep it in the list. But Patel refused: "In the present state of our society (this) will be a dangerous thing." A suggestion to leave it to individual states was shot down by B.R. Ambedkar, who warned that states might go to war with each other.
And thus, the right to bear arms was dropped from India's Constitution. It came up for discussion again in the assembly. H.V. Kamath, the member for Central Provinces and Berar, delivered a rather passionate defense of the right in December 1948. But there was little real enthusiasm. The Chairman of the Constitution Drafting Committee, Dr. B.R. Ambedkar was of the view that such right was only necessary and relevant when India was under the rule of the British Empire but such demand has no relevance in free India.
The Arms Act, 1877 remained in force for almost 82 years even after the Indian independence. The Act of 1877 was amended by the Government of India to remove its shortcomings and make it applicable to the needs of free India. In 1959, the Government of India enacted the Arms Act, 1959 by which the Act of 1877 was repealed. The effects of the Arms Act, 1877 is still prevalent in India as the Constitution of India does not recognize the fundamental right of the people to keep and bear arms like the United States where the Second Amendment of the United States Constitution gives this right to the American citizens.
Interpretation And Construction
The basic objective behind The Arms Act,1959 is enshrined in its Preamble, which states, "An Act to consolidate and amend the law relating to arms and ammunition". It aims to reduce the circulation of illegal weapons and the resultant crimes.Also, the Act seek to classify firearms and other prohibited weapons so as to ensure:
- That dangerous weapons of military patterns are not available to civilians, particularly anti-social elements;
- That weapons for self-defence are available for all citizens under license unless in other circumstances. According to this legislation, no person should acquire or possess any arms or ammunition unless the person has a licence which has been issued in accordance with the provisions of this Act; and
- That firearms required for training purpose are made easily available on permits.
In the case of Ganesh Chandra Bhatt v Distt Magistrate, Almora &Ors. (AIR 1993 All. 291), Justice Katju had taken the above view. In this case, the petitioner had applied for the license of a revolver. Even after fulfilling all the necessary formalities for obtaining a clearance, license was not granted.
The petitioner approached the Allahabad High Court. Justice Katju in this particular case ruled that if an application has been made for a weapon which does not come under the category of prohibited weapons, and if three months have passed and there has been no communication, it would be deemed that the license has been granted by the government.
He opined that the right to bear arms is included in the right to self-defence, which being a natural right should come within the boundaries of Article 21 which talks about right to life. He mentioned that worshipping firearms during Diwali and Dussehra and using fire arms in Mahabharata illustrates that this right is related to the dignity and self-respect of the citizen and right to life with dignity is guaranteed by Article 21.
The procedure for granting of gun licenses on the ground of self-defence is extremely difficult and stringent, therefore they are allowed in extremely special cases, a person applying for the license must have a strong reason and must have filed a First Information Report (FIR) prior to the application. In India, the strict conditions, corruption and arbitrariness related to obtaining gun licences means that in utter contrast to other democratic countries, obtaining a license is treated as an exclusive privilege instead of a common occurrence.
Within India, just like all other aspects of daily life, obtaining a gun license is far easier if you're a well-connected politician, wealthy man, powerful and influential man etc. If you're part of the 99% of ordinary Indians desperate for a proper means of defense, in exercise of IPC Section 96 to 106 of the penal code which states the law relating to the right of private defense of person and property, under the current Kafkaesque system, you're better off buying unsafe desi shoddily made "kattas"
To further solidify my point, here are specific mischievous provisions:
Arms Act 1959- section 14. Refusal of licences 16:
- Notwithstanding anything in section 13, the licensing
authority shall refuse to grant:
- a licence in any other case under Chapter II-
- where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.
- 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.
As we can see here, Law states14 that license can be issued for anyone who has good reason without stipulating what constitutes a good reason. This is very vague and leaves room for executive tyranny and arbitrariness. Let's create a realistic hypothetical situation. Say for instance, there are communal riots in a disturbed area. People are marching about wielding swords and illegally acquired guns and are on the prowl. They pose a threat to you and your family and hence you need a gun.
You file an application and are then interviewed by the DCP. But this DCP is very biased and bears hatred towards your community. As such, even if you're eligible, he may not grant you a license as article 14. states that authorities can deny license for unspecified "public peace or for public safety" reasons. They are not obligated to give reason for refusal of application if they deem it to be necessary. This is clear executive tyrannical arbitrariness and should not be tolerated in a "free" country like India.
For this section, I will use the Mischief rule to prove the illegitimacy of the Arms Act 1959.
The rule was first set out in Heydon's Case [1584] 76 ER 637 3 CO REP 7a, where the court held that four points should be taken into consideration:
For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:
- What was the common law prevailing before passing this act?
- Which is the mischief or defect for that there was no provision in common law?
- What remedy was decided or promised by the parliament to remove the defect of the commonwealth?
- What is the actual reason for the remedy?
It is the duty of Courts to construct the statute in such a way to suppress the mischief and encourage the remedy according to the intention of the legislature.
Two important formulas related to mischief are:
- Pro-private commando: and
- Pro-bona public
Let's begin by answering the 4 questions:
- What was the common law prevailing before passing this act?
Ans: The common law prevailing before passing this act was The Indian Arms Act, 1878
- Which is the mischief or defect for that there was no
provision in common law?
Ans: Gun possession and usage has always been a subject of critical legal scrutiny and controversy in India. The gun laws and policies in India have been considered by many thinkers and gun rights activists as being one of the most stringent and rigid gun regulations in the world. The essence of the old laws relating to guns which prevailed during the British Raj has been incorporated by the Indian government under the umbrella of new gun control policies after independence.
The new gun control legislation, namely the Arms Act, 1959 brings significant changes to the gun laws in India by amending various old laws to meet the needs of the modern independent India, although it still maintained a colonial type of restrictiveness from the previous act.
For this section, we can say that the Recent 1959 act is simply a slightly amended continuation of the previous 1878 act, and so the modern act covers all areas covered under the previous law, the only difference being that while the previous act said that local Indians should have restricted access to arms and weapons. It however made an exception in the case of Anglo Indians and British rulers who were free to own weapons.
The gun license was introduced to restrict Indians from owning weapons. While the present act allows access to all Indians, subject to sometimes unfair terms and conditions and the reality of the privilege of the rich and influential.
- What remedy was decided or promised by the parliament to
remove the defect of the commonwealth?
Ans: As stated above, the 1959 act is simply a slightly amended continuation of the previous 1878 act, and so the modern act covers all areas covered under the previous law. The main aim or "remedy" of the Arms Act 1959 was supposedly to "maintain peace and harmony" in society. The act in reality restricted Indians from freely using the firearms and armaments. This act gave arbitrary use of powers to the licensing authorities. In 1959 Arms Act was passed with new strict rules. The act of 1959, was supplemented by the arms rules in 1962. They both together regulate, i.e. prohibit the acquisition, possession, manufacture, sale, export, import and transfer of firearms except with a license. As such, the "remedies" were simply updated restrictions and punishments, with the sole intention of establishing that:
- In India, ownership and possession of firearms and guns is neither a constitutional right nor a legal right.
- The Arms Act, 1959, nowhere lays down that owning and possessing a gun is a right which is provided by the Act.
- The Arms Act is not a facilitative statute promoting gun rights but a restrictive law governing gun control.
- Therefore, the judiciary, in interpreting the gun laws and policies, makes it clear that owning a gun is not a right of a person but a privilege.
- No person can own, possess, use, make, transport, sell, or carry out the
business of guns, firearms, and ammunition without valid permits and
licenses issued by the governmental agencies.
- What is the actual reason for the remedy?
Ans: After a clear perusal of the history of gun regulations and laws, starting from England, it's evolution in America as the second amendment, which recognizes protects the right of the people to keep and bear arms as a fundamental right. It reads as follows:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
By this fundamental right, every American citizen has the right to acquire and possess guns and firearms and finally to the racist and oppressive arms act 1878, which put everyday Indians at risk from getting harassed from the British colonizers, leading to some Indian leaders such as Motilal Nehru and Subhash Chandra Bose to be in favor of reforms in gun regulations. Further, In 1928, the Motilal Nehru Report put forward a list consisting of Fundamental Rights which also included "The Right to Bear Arms".
Thereafter, The Indian National Congress suggested and accepted a list of fundamental rights including the Right to Keep and Bear Arms which were proposed to be included in the Constitution of free India. However, the framers of the Constitution did not include the Right to Keep and Bear Arms as a fundamental right while framing and adopting the Constitution. The Chairman of the Constitution Drafting Committee, Dr. B.R. Ambedkar was of the view that such right was only necessary and relevant when India was under the rule of the British Empire but such demand has no relevance in free India. Unfortunately, The Arms Act, 1878 remained in force for almost 82 years even after the Indian independence.
The Colonial Act of 1878 was amended by the Government of India to remove its shortcomings and make it applicable to the needs of free India. In 1959, the Government of India enacted the Arms Act, 1959 by which the Act of 1878 was repealed.
Evidently, the effects of the Arms Act, 1878 is still prevalent in India as the Constitution of India does not recognize the fundamental right of the people to keep and bear arms like the United States where the Second Amendment of the United States Constitution gives this right to the American citizens. Taking into consideration all the aforementioned historical information, It can be justifiably assumed that the actual reason for the remedy
Is to:
- To limit the acquisition, ownership, and usage of firearms by placing unreasonable restrictions and measures.
- To lay down austere restrictions on the manufacture, sale, import, export, and transport of arms and ammunition.
- To lay down vague and difficult procedures and mechanisms for issuing, renewing, revoking, suspending as well as appeals in respect of gun licenses to persons, agencies and factories.
- To empower the Government, administering authorities and officials to exercise arbitrary powers in regards to gun licenses, search and seizures, and issuing prohibitory orders.
- To lay down harsh punishments and penalties for contravention of the provisions of the Act.
- To empower the Government to make authoritarian rules as and when they desire in order to give effect to the provisions of the despotic Act.
Furthermore, the British rulers, Anglo-Indian subjects as well as government officials and servants were exempted from the purview of the Act. In terms of the more recent act, we can see similarities. Although the modern act adorns a veil of fairness, the ground reality is that due to the inherent strictness of the act, the government is also very selective in providing the privilege of owning guns.
Just like in all aspects of the bureaucracy, only the rich and influential can acquire this privilege easily, leading to an imbalance of power between them and the rest of Indian citizens. Regular citizens, desperate for safety, are forced to purchase cheap dangerous improvised firearms for their safety, often risking their own safety as the guns are prone to unpredictable explosions.
The true intent of the arms act is tyranny, plain and simple. The Arms Act, 1877 introduced gun regulations in India and was successful in furthering the British objectives of limiting and restricting gun possession in India. With approximately five civilian firearms per 100 people, India is the 120th most armed country in the world. Thus, we can also say the 1959 act was successful in its objective of monopolizing firepower in the hands of the state.
Conclusion
When man existed in the State of Nature, the rule was 'survival of the fittest' and there was an absolute right to self-defense. However, with the advent of modern democracies, this right is still recognized but it is subject to some restrictions. The right to private defense is essential but since the ambit is so wide it is hard to decide whether the act was actually done in good faith and in the exercise of self-defense rather than malice or with the intention to cause harm.
It is the first duty of man to help himself. The right of self-defense must be fostered in the citizens of every free country. The right is recognized in every system of law and its extent varies in the inverse ratio to the capacity of the state to protect life and property of the subject(citizens).
It is the primary duty of the state to protect the life and property of the individuals, but no state, no matter how large its resources, can afford to designate a policeman to follow every criminal in the country. Consequently, this right has been given by the state to every citizen of the country to take law into his own hand for their safety.
In recent times, efforts and initiatives have been made by pro-gun groups to make gun laws more liberal and permissive. Their main contention is that due to the ever-increasing crimes such as murders, rape, armed robbery, extortion, and terrorism, the need for guns for self-defense and protection of person and property has become a necessity.
They also are of the view that the restrictions on gun ownership and possession under the current laws do not hold ground in independent India as these laws have been the adaptation and continuation of the oppressive gun regulations of the British rulers. These gun rights activists are trying to bring gun law reforms in the country through various initiatives and assertions.
Debates have been made illustrating how the offender can obtain a gun even without a permit to commit crimes through stringent laws exist; while the victim cannot defend himself as the laws apply unfavorably upon the innocent.
The Soviet government had initially made it a point to "arm the working people" in the Declaration of the Rights of Working and Exploited People in January 1918. The December decree of the CPC of 1918, "On the surrender of weapons", ordered people to surrender any firearms, swords, bayonets and bombs, regardless of the degree of serviceability. The penalty for not doing so was ten years' imprisonment.
On December 12, 1924, the Central Executive Committee of the USSR promulgated its degree "On the procedure of production, trade, storage, use, keeping and carrying firearms, firearm ammunition, explosive projectiles and explosives", all weapons were classified and divided into categories. Now the weapons permitted for personal possession by ordinary citizens could only be smoothbore hunting shotguns.
The other category of weapons were only possessed by those who were put on duty by the Soviet state; for all others, access to these weapons was restricted to within state-regulated shooting ranges. Illegal gun possession was severely punished.
Few German citizens owned, or were entitled to own firearms in Germany in the early 1930s, the Weimar Republic having strict gun control laws. When the Nazi party gained power, some aspects of gun regulation were loosened, such as allowing firearm ownership for Nazi party members and the military. The laws were tightened in other ways. Nazi laws systematically disarmed so-called "unreliable" persons, especially Jews, but relaxed restrictions for "ordinary" German citizens.
The policies were later expanded to include the confiscation of arms in occupied countries. Adolf Hitler once said "the most foolish mistake we could possibly make would be to allow the subject races to possess arms. It is frequently argued that these laws, which resulted in the confiscation of weapons not belonging to supporters of the Nazis, rendered the Jews and other disfavored groups like the Gypsies, Slavs, Poles, and their potential allies defenseless and set the stage for the slaughter of the Holocaust that followed.
Yet another valid point that I'm trying to make by bringing up examples of two brutal authoritarian regimes is that If India truly is a free democratic country, there shouldn't exist laws that mirror that of the above regimes. If, God forbid, tomorrow we face a coup d'�tat, our citizens d be left vulnerable to a brutal regime. Winston Churchill once said "Those that fail to learn from history, are doomed to repeat it."
Gun possession and15 usage has always been a subject of critical legal scrutiny and controversy in India. The gun laws and policies in India have been considered by many thinkers and gun rights activists as being one of the most stringent and rigid gun regulations in the world. The essence of the old laws relating to guns which prevailed during the British Raj has been incorporated by the Indian government under the umbrella of new gun control policies after independence
To conclude, The major objective of this paper was to address the disadvantages of strict gun laws, in particular the Arms Act, 1959 and validate my opinions through is presenting, analyzing, historically investigating and discussing the topic. I have done that by providing and analysing the history of gun laws from its origin in England to the second amendment in America and then finally the oppressive gun laws under the British Raj, which unfortunately was repeated in Independent India.
Then I analysed, interpreted and constructed the problematic provisions of the arms act, showing its true intentions and irrelevance in a free country like India. The present study makes several noteworthy contributions to the pro gun law reform movement in India.
According to me, a reasonable approach to tackle this strict gun law issue could be to:
- Make the right to bear arms a fundamental and a constitutional right
- Make the gun laws more detailed and specific, as ambiguity leads to non-issuance of gun licenses and therefore reliance on illegal and dangerous guns
- Encourage a strong gun culture in India, similar to that in the USA, and train and educate people on gun use by using gun information campaigns and opening shooting ranges.
- Liberalize the Indian gun market, so that ordinary Indians arent forced to wait for years to buy and rely on poor quality weapons from the ordnance factories and that better quality foreign guns can be imported to India cheaply.
- https://en.wikipedia.org/wiki/Gun_law_in_the_United_States
- https://en.wikipedia.org/wiki/List_of_firearm_court_cases_in_the_United_States
- https://en.wikipedia.org/wiki/Gun_politics_in_the_United_States
- https://en.wikipedia.org/wiki/Gun_ownership
- https://en.wikipedia.org/wiki/Gun
- https://en.wikipedia.org/wiki/Arms_Act,_1959
- https://lawtimesjournal.in/right-to-self-defense-in-india/
- https://en.wikipedia.org/wiki/Gun_control
- https://gun-control.procon.org/
- https://en.wikipedia.org/wiki/Crime_in_India
- https://worldpopulationreview.com/country-rankings/murder-rate-by-country
- https://www.history.com/topics/united-states-constitution/2nd-amendment
- https://knoji.com/article/gun-control-and-indian-arms-act-1878-during-the-days-of-the-raj/
- https://www.livemint.com/Opinion/nAr4aNEWmFfpzOfWMEgotJ/Guns-and-Indians.html
- https://timesofindia.indiatimes.com/readersblog/libertarian-conservatism/gun-rights-in-india-the-second-amendment-and-ambedkar-23315/
- https://legislative.gov.in/sites/default/files/A1959-54_0.pdf
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