This article is written by Shruti Singh, 2nd year Law intern from Hidayatullah National Law University, Raipur pursuing B.A.LLB(Hons.) Course. This article concentrates around the Arms (Amendment) Act, 2019 its critical analysis and the changes brought by it.
Background of the Arms (Amendment) Act, 2019
The Arms (Amendment) Bill, 2019 was introduced in the Lok Sabha by Union Home Minister Amit Shah on November 29, 2019. This bill amends its principal act, the Arms Act, 1959. The bill was passed without any amendment from Lok Sabha on December 9th, 2019 and from Rajya Sabha on December 10, 2019. The opposition proposed several amendments to the bill, which were rejected.
Lok Sabha Debates
There were certain facts that came in front in the Lok sabha during the passing of Arms(Amendment) Bill, 2019. These are:
- Six-decade-old law contained many discrepancies as it made crime control difficult.
- By going as per our historical traditions, the ancient arms-bearing tradition of India continues to supply the manpower demand of the current national security establishments of India. Later on, a negative consequence of disarming the population by law was the growth of illegal country arms and smuggling of firearms. This is the major source of crime today and not legally licensed firearms.
- There are approximately six crore fourteen lakh illegal arms in our country which are the main one of the main reasons behind the serious crimes happening in our country. Easy availability of illegal arms has made the underworld effective in cities like Mumbai, Ahmedabad, Indore and U.P. The largest factory of illegal weapons is situated at Munger District of Bihar and Khargaon in Madhya Pradesh. Illegal weapons are smuggled into this country from other countries also. Underworld is getting arms through Nepal and Bangladesh route. One of the largest factories of the world is situated in Darrha-Adam Jail at Peshawar, Pakistan. In addition to that illegal arms and Naxal insurgency are posing a great threat to our country and the society, in general. UP, Jammu and Kashmir, Patna and Munger district of Bihar have become one of the largest hubs of manufacturing illegal arms.
- An illegal arms control cell should be set up in every state for regulations of illegal arms and anticipatory bail should not be granted to the accused booked under the Arms Act. Similarly, the licencing system should be made more transparent.
- Apart from that, the import policy of the year 1984 should be reintroduced. It would be better if the prices of various arms manufactured in ordnance factories should be kept affordable. This will prevent people from getting illegal arms from other sources and especially from other countries.
- With regards to the celebratory gunfire, the Government has made the provision of punishment of two years. It was proposed that seizure of licence, punishment for minimum six months, fine or something like that can be done for this purpose because punishment for two years is too much for an offence like celebratory gunfire.
- After the amendment, the Government has reduced to keep the number of weapons from three to two, at any time by a person. There is no place in police stations to keep these weapons. All seized weapons are lying in very pathetic condition there. As per record, there is a loss of Rs.90,000 crore due to this. It was suggested that in spite of reducing the number of weapons, law and order situation should be improved.
- It was seen from the cases that to issue licences to women is not considered to be appropriate. Rifle Clubs must be provided financial assistance to train women. It was further suggested to enact such legislation which protect us against the misuse of weapons.
- Laws should be enacted for such laws which provide a conducive environment for aspiring shooters. The Government should approve the clubs affiliated with the National Rifle Association to set up shooting ranges wherever such ranges do not exist. It was further suggested that Government should issue expedience licence if one person of a family proposes to give the weapon to another person of the same family.
- Permission to import arms should also be granted this will facilitate the availability of better quality weapons to people and revenue to the Government. Similarly, certain relaxation should be provided to aspiring sportsmen. Police firing ranges must be opened once in a week to facilitate practice session for them.
- A very crucial point that was put forward was that the Government has introduced the concept of organized crime syndicate by amending Section 9(6) of the Bill. This particular definition of ‘organized crime syndicate’ is exactly as is given in the Maharashtra Control of Organized Crime Act (MCOCA). The Maharashtra Assembly had enacted the MCOCA Act under the State List. The Union has no power to interfere in the States’ powers to investigate, prosecute and penalize the organized crime. Furthermore, the Government offers no explanation as to why it is necessary to incorporate organized crime syndicate under the Arms Act. It seems that this Government does not believe in federalism. They want to trample upon the State List. Inclusion of organized crime syndicate by amending Section 9(6) shows that they are completely encroaching upon the State List.
All these suggestions made by different ministers were rejected and the bill passed without much amendments from the Lok Sabha.
Changes Brought by the Amendment
Newly added Definition of Licence- Section 2
Any definition on License was not present in the Act.
A new definition of licence was added- licence means a licence issued in accordance with the provisions of this act and the rules that are made thereafter and also includes licence issued in electronic form. [Clause (ea) has been added after Clause (e)]
Licence for acquisition and possession of firearms and ammunition (Number of weapons)- Section 3
No person except for those mentioned in clause 3 shall acquire, have in his possession or carry more than three firearms, at any time.
Persons mentioned in Section 3(3) are firearms dealer or any member of a rifle club.
- In Section 3 of the principal act the words ”two arms” has been substituted against “three arms”. It means that now a person at a time cannot carry more than two firearms, previously three firearms were allowed.
- A proviso to Section 3 has also been inserted which says that if a person possesses more than two firearms at the commencement of the act, he shall keep any of the two arms with him and deposit the rest with the officer in charge of the nearest police station or with a licensed dealer within a period of one year. And where the person belongs to armed forces he shall deposit in the unit armoury and after which it shall be delicensed from the ninety days of the expiry of the said one year. And while granting arms licence on inheritance or heirloom basis, the limit of two firearms-, in any case, can be exceeded.
It is still not applicable to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice. [Section 3(3)]
Scope of licence for manufacture, sale, etc. of arms and ammunition- Section 5
In Section 5(1)-
- No person shall manufacture, use, sell, transfer, convert, repair, test or prove, and
- Expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm, or
Any other arms or ammunition of such class or description as may be prescribed unless he holds a valid licence in accordance with the provisions of the law.
In section 5(1)-
The word manufacture has been substituted by “manufacture, obtain, procure”. It means that no person has the right to manufacture, obtain and procure firearms as described under the act without a valid licence issued in accordance with the provisions of the Act.
Licence for the shortening of guns or conversion of imitation firearms into firearms- Section 6
Section 6 stated that no person shall shorten the barrel of the firearm or convert an imitation(copy) firearm into a firearm unless he holds a valid licence issued on his behalf in accordance with the provisions of this Act and the rules made thereunder.
In section 6 of the principal Act, after the words “convert an imitation firearm into a firearm”, the words “or convert from any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms” shall be substituted.
After the amendment, one more category where conversion is not allowed has been added as is mentioned in the Arms Rules, 2016. It now covers more items by widening its scope of application of this provision.
Prohibition of sale or transfer of firearms not bearing identification marks on it- Section 8
Section 8(1): No person shall obliterate(destroy utterly), remove, alter or forge any name, number or other identification marks stamped or otherwise shown on a firearm. It prohibits any kind destruction of the number or identification marks stamped or shown on a firearm by any person.
In Section 8 of the principal Act, in sub-section (1), for the word “firearm”, the words “firearm or ammunition” shall be substituted. It has the effect of widening the scope of firearm and covering all lot more types of firearms and ammunition.
Grant of licences (Firearm for target practice)- Section 13
In Section 13(3)(ii): It states that licensing authority shall grant licences in regard of a point 22-bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognized by the Central Government.
In Section 13 of the principal Act, in clause (a) of sub-section(3), in sub-clause (ii), for the words and figures “point 22 bore rifle or an air rifle”, the word “firearm” shall be substituted.
It means that now the licensing authority can grant licence in regard to a firearm to be used for target practice by a member of a rifle club or rifle association licensed or recognized by the Central Government of India.
Section 15: Duration and Renewal of licence- Section 15
Section 15(1): A licence under section 3 shall continue to be in force for a period of three years from the date on which it is granted if it is not revoked in between this period.
Provided that if the person so requires the licence can be granted for a shorter period only if the licencing authority considers that the reasons are such that it needs to be recorded. In this case, the licence will be granted for a shorter period on the desire of the person who requires a licence with the grant of licensing authority.
In sub-section(1) of Section 15 the words “five years” has been added in place of “three years.”
It means that now a licence shall continue to be in force for a period of five years from the date on which it is granted if it is not revoked. A proviso has also been added which says that the licensee needs to produce the licence along with the arms and ammunition before the licensing authority after every five years from the date on which it was granted or renewed.
Punishment for certain kinds of offences (Enhancement of Punishment)- Section 25
(a) those who are involved in manufacturing, selling, transferring, converting, repairing, testing or proving, or exposing or offering for the sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
- In Section 25
- In clause (a), instead of the word “manufactures,”, the words “manufactures, obtains, procures,” shall be substituted.
It means that now whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for the sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5.
- Clause (b)- After the words “convert an imitation firearm into a firearm”, the words “or convert from any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms” shall be inserted.
- Whoever shortens the barrel of a firearm or converts an imitation firearm into a firearm or convert from any category of firearms as under Schedule I of the Rules under this Act to another category, in contravention of section 6.
- Clause (d)- Whoever brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 6.
- In the long line, for the words “three years but which may extend to seven years”, the words “seven years but which may extend to imprisonment for life” has been substituted.
Any person who practices anything mentioned in Clause (a), (b), (d) will be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and also a fine. The minimum punishment as per the current amendment in violation of said offence will be seven years as against three years that was present in principal act.
Sub-section (1A)- Enhancement of punishment for acquiring prohibited arms in contravention of section 7
According to this provision, whoever acquires, has in his possession or carries any prohibited arms or ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
Instead of the words “five years but which may extend to ten years”, the words “seven years but which may extend to fourteen years” shall be substituted. The term of punishment for the said offence has been increased. The minimum punishment in such cases will be seven years instead of five years.
The following proviso shall be inserted,
The new provision which will be added states that “Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years.”
After clause (1A) one additional clause (1AB) has been inserted:
According to this provision any person who by using force, takes the firearm from the police or armed forces shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.”
Enhancement of punishment for manufacturing/possession of prohibited arms in contravention of section 7- Subsection (1AA)
Any person who indulges in manufacturing, selling, transferring, converting, repairing, testing or proving, or exposing or offering for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof any prohibited arms or prohibited ammunition in contravention of section 7 shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
Instead of the words “seven years”, the words “ten years” shall be substituted.
Any person who manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Sub-section(1B): Marking of arms for tracing
A person who acquires, has in his possession or carries any firearm or ammunition in contravention to section 3, arms or ammunition or refuses to point out where the same are or is manufactured or kept shall be punished with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine.
- The words “one year but which may extend to three years”, has been substituted with the words “two years but which may extend to five years and shall also be liable to fine”.
- In the proviso, instead of the words “one year”, the words “two years” shall be substituted. It has increased the term for punishment.
After sub-section (5) new sub-sections (6), (7), (8) and (9) shall be inserted. It deals with organised crime and illicit trafficking and the punishments in such cases.
There were no provisions for offences like organised crime syndicate, illicit trafficking and celebratory gunfire in the principal act.
Introduction of Organised Crime Syndicate(Added)- Sub-section (6)
If any member of organised crime syndicate on his own behalf possess or carry arms and ammunition without licence they will be punished with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Organised Crime Syndicate- Sub-section (7)
Whosoever acting on behalf of an organised crime syndicate will also be punished with imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable for fine.
An explanation clause has also been added to Sub-section(6) and (7) which explains the words “organised crime”, “organised crime syndicate” and “continuing unlawful activity”.
Added new offence of Illicit trafficking- Sub-section (8)
Whoever is involved in or aids in the illicit trafficking of firearms and ammunition in contravention of sections 3, 5, 6, 7 and 11 shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. An explanation for “illicit trafficking” has also been added.
Rash and negligent use of firearms (Celebratory Gunfire)- Sub-section (9)
This sub-section prohibits firing in rash or negligent manner which has the tendency of endangering a person’s life and safety of others. The person shall be punishable with imprisonment for a term which may extend to two years, or with fine up to rupees one lakh, or with both.
Punishment for using arms (Enhancement of Punishment)- Section 27
Any person who uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, they shall be punishable with death.
In Section 27 of the original Act, in sub-section (3), for the words “shall be punishable with death”, the words “shall be punishable with imprisonment for life, or death and shall also be liable to fine” has been substituted with. So now in case of use of prohibited arms or ammunition the punishment is imprisonment for life or death and shall be liable to fine.
Power to make rules- Section 44
Section 44(2)(f): the manner in which the maker’s name, the manufacturer’s number or other identification mark of a firearm shall be stamped or otherwise or shown thereon.
In Section 44 of the original Act, in sub-section (2), in clause (f),
- For the words “firearm shall be stamped or otherwise shown thereon”, the words “firearm or ammunition shall be stamped or otherwise shown thereon for the purposes of tracing” shall be substituted.
Definition of Tracing added
An explanation for the term tracing has been provided which means a systematic tracking of firearms and ammunition from the manufacturer to purchaser for the purpose of detecting, investigating and analysing manufacturing and trafficking.
Critical Analysis of the new Amendment
Renewal Period of License Increased
The act has increased the period between which the licence can be renewed from three years to five years. This means that now a person can possess arms without much restriction and tension of renewal for a longer period.
Enhancement of Term of Punishment
The amendment largely talks about increasing the term of punishment under various offences, it does not cover any regulation to restrict illegal marketing and availability of guns in the market. Will increasing the punishments to an offence reduce the happening of an offence related to arms, This is an important question that needs to be addressed. We are a common law country, whose primary aim is providing justice to its citizens. But just by increasing the punishment will bring a change in the current crime scene in the country. For example, drugs are banned in India, still, we see that it is available so easily. Some states like Punjab are affected by it to a great extent. We also see students in colleges and universities consuming it on a daily basis. Has there been any difference to it? Likewise, for arms and ammunition, the availability of it should be strictly monitored.
Unrestricted use of licences
The State has over the years granted licences and also issued licences for firearms for crop protection to farmers as provided in the Arms Act. There is also a great cultural importance that citizens belonging to the martial communities take pride in retaining arms. These groups also need to be regulated and checked.
Availability of Illegal weapons
Then abundance of illegal weapons is the biggest problem in our country. The people who carry arms with licence anyways not pose much threat to the country. The people who do not have a valid licence or illegal weapons are the main reason behind the problem. From where the people get weapons who use them illegally? This is more important that what we are going to do with those weapons? The law-abiding people should not have any fear in their mind. I think there is no problem to issue licences to law abiding citizens.
Intention of the Bill
The intention of the bill is to punish those people who are indulging in an unlawful act which was meant for pecuniary benefits. Sometimes, the crime can be committed on the basis of the principle of antagonism against a person or a group. That type is not addressed in the Bill.
Grant of licences
One of the questions is, what should be the criteria to decide as to who will get the licence. It can be seen that private security agencies are seeking licences and they are providing firearms to private security guards. The question is, whether private security guards who are carrying those firearms are authorized to do so. Are they regulated by the government?
Effect on Private Market
The government allows 49 per cent FDI( Foreign Direct Investment) in small arms’ manufacture and then, want to limit it from possessing three arms to two.
Tension on Sports Community
There are a lot of worried people in the shooting sports community in India, and their anxiety and stress is that it limits the number of weapons that will hit new and emerging talent. Practising with weapons is part of their jobs and curbing this will have a huge impact on them.
History of the Arms(Amendment) Act, 2019
The Arms Act,1959 is the principal act which consolidates and amend the laws relating to arms and ammunition in the country to curb illegal weapons and violence stemmed from them. It replaced the Indian Arms Act, 1878 which was made by Britishers. The Indian Arms Act, 1878 was an act that regulated the manufacture, sale, possession and carrying of firearms. As before the Indian First War Of Independence in 1857, there were very few gun control laws in the country.
The Act is divided into 6 Chapters.
- Chapter I: Parliamentary;
Provides a short title and definitions and interpretations of terms used in the act.
- Chapter II: Acquisition, Possession, Manufacture, Sale, Import, Export, and Transport of Arms and Ammunition;
It provides for the rules and regulations around acquisition, possession, manufacture, sale, import, export and transport of arms and ammunition in India.
- Chapter III: Provisions relating to licences;
Details how to procure a license, rules around grant, refusal, fees for licence.
- Chapter IV: Powers and Procedure;
Provides details on the powers that the government officials have to enforce like seizure and detention, the deposit of arms and search of vessels, etc of this act.
- Chapter V: Offences and penalties;
Explains punishments associated with breaking rules by individuals and companies that are related to this Act.
- Chapter VI: Miscellaneous;
Deals with the other miscellaneous parts of the Act such as exemptions, delegation, arrest and searches.
Significance of this Amendment
The Arms (Amendment) Bill, 2019 has been introduced to control the use and possession of weapons in the country, to reduce their rash and illegal usage, which can endanger another human being in the country. It tries to impose more stringent punishments for production of arms and ammunition illegally and those possessing illegal arms. It also punishes those who indulge in a rash or negligent firing at a place of celebration and risk the life and safety of others.
This new amendment lacks to cover some important areas that were proposed by different ministers in the Lok Sabha debate. This amendment has majorly increased the term of punishment for various offences and also introduced some new category of offences. Something significant here is that, will this amendment bring a change in the society in terms of crimes that happen with arms and ammunition. The answer to this question largely comes in negative as still the availability of arms and ammunition has been overlooked or rather not dealt with.
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