This article is written by Nikara Liesha Fernandez from School of Law, Christ University, Bangalore. Through this article, the author carries out an in-depth analysis on the development of the Arms Act, 1959 as well as the provisions of the same and the amendments made to it by the Arms (Amendment) Bill, 2019.
The Arms Act, 1959 was enacted by the Indian Parliament with the sole purpose of consolidating and amending the laws relating to arms and ammunition. This was the need of the hour in order to curb the menace caused by individuals holding illegal weapons which could be potentially used to perpetrate violence in society through criminal activities. The Act aims to be as extensive as possible to cover all aspects relating to the acquisition, possession, manufacture, sale, import, export and transport of arms and ammunition as stated explicitly in Chapter II of the same. Further, Chapter IV of the Act elaborates upon the powers and procedures exercisable by the government and other officials in regulating the use and possession of arms and ammunition in India including provisions for arrest, search, seizure and detention orders.
History of the Arms Act
The very first instance involving the use of guns by the Indian people which caused alarm among the then individuals in power- the British, was the sepoy mutiny of 1857. This unsettling event during colonial times involved the introduction of the infamous enfield rifle by the British for use by the Indian sepoys. In order to use the rifle, however, the sepoys had to bite off the lubricated cartridges which were greased with a mixture of pig and cow lard. This was a tactic to insult the religious sentiments of the Muslims and Hindus respectively and caused mass violence and discontent among the Indian sepoys. This gave momentum to the sepoys to unite and cause a violent uprising against the British officials.
The British, on realizing the rapidity with which the Indians were able to put their differences aside and join hands to fight against their oppression decided that the only way to prevent any future mass uprisings against them was to establish an Act that restricted the Indians from possessing any arms. This gave rise to the Indian Arms Act, 1878. According to this Act, only those Indians who had prior permission or a proper license were allowed to possess arms. This Act further regulated the manufacture, sale, possession and carrying of firearms and was implemented during the tenure of the then Viceroy of India, Lord Lytton.
The hypocrisy of this Act was evident as Europeans were conveniently exempted from the provisions of the same while strict penalties and punishments were put forward for Indians if they were found owning any type of weapon.
After independence, the Government of India passed the Indian Arms Act, 1959 which recognised the necessity for certain law-abiding citizens to possess and use firearms for the purposes of sports, crop protection and self-defence. This Act was followed by the Arms Rules of 1962.
Provision for licenses
The process of obtaining an arms license is no easy task. Unlike the United States of America, where the right to bear arms is constitutionally recognized, the Indian firearm laws are one of the strictest in the world. Obtaining a license to possess a firearm can take a minimum of one whole year due to the number of procedures that one has to undergo in order to satisfy the authorities that he/she is eligible to possess a firearm.
Section 3 of the Act states that only those individuals who possess a valid license issued in accordance with the provisions of the Act are entitled to possess any firearm or ammunition. The 1959 act permits individuals to possess a maximum of three firearms. The excess, if any, is to be deposited at the nearest police station within 90 days of the commencement of the Act.
Applications for the grant of an arms license are required to be made to the appropriate licensing authority in the proper form with the required documents and fee. The minimum age which an individual needs to be in order to be eligible to possess a firearm is 21 years. In the case of a ‘junior target shooter’, however, an individual of 16 years of age is allowed to possess a firearm.
An individual’s application for a license must be accompanied by documents such as identity proof, address proof, proof of age and education, four passport size photographs, income tax returns for the last three years and a character certificate as well as physical and mental health certificates.
For a self-defence license, it is mandatory that the individual proves that he/she faces an impending threat to life. This can, however, include the threat of wild animals.
Following the application, the police carries out a background check of the individual, spanning a time period of two months which consists of an interview period of the individual’s family and neighbours in order to assess his/her nature- whether he/she is aggressive or suppressive, has any criminal history of domestic violence or aggression, etc.
The reports made by the police are stored with the Police Criminal Branch of the National Crime Record Bureau and finally, the licensing authorities interview the applicant and decide whether they want to grant or reject the application for the license.
If the license is granted, the applicant is mandatorily made to participate in an ‘arms handling’ course to ensure he/she handles the firearm in a safe and responsible manner. Arms licenses are valid for a period of three years.
The Central Government has the final say on the confiscation of licenses and weapons of individuals at any point in time. They also hold the monopoly over the manufacture, import, export and sale of such arms and ammunition.
The licensing authority has the power to deny an individual the license to possess arms under the following conditions (Section 14 of the Act) –
- If the individual is already prohibited under the provisions of this Act or under any other law currently in force from possessing any arms and ammunition, or
- If the individual is found to be of unsound mind or age of minority.
Types of arms
The Act categorises under Section 2, the firearms which an individual can possess into two main categories:
- Prohibited Bores (PB), which can be used only by the Army, Central Paramilitary forces or the State police.
- Non- Prohibited Bores (NPB), which can be used by all individuals who hold a valid arms license.
The primary basis of the distinction between the two is on the measurements of the bore, which is the thickness or diameter of the bullet.
The 2008 Mumbai terror attacks saw a change in the gun ownership norms. Prior to the attack, prohibited bore firearms were allowed to be used by both defence forces personnel and family heirlooms. Post the attacks, however, only those individuals who face ‘serious and imminent threat’ to their own person or family members as a result of being residents of terrorist-prone areas, or are potential targets of terrorists as a result of the nature of the jobs, are allowed to possess PB firearms. The PB licenses can only be granted by the Central Government.
Section 2(1)(h) of the Act contains a list of ‘prohibited ammunition’ which includes any ammunition containing any noxious liquid, gas or any other such thing and includes rockets, bombs, grenades, shells, missiles and articles designed for torpedo service and submarine mining.
Further, the prohibited arms enumerated in Section 2(1)(i) of the act include adapted firearms that provide a continuous discharge of missiles on applying pressure to the trigger or until the magazine containing the missiles is empty as well as any weapons designed to discharge noxious liquids and gases. The list also includes artillery, anti-aircraft and anti-tank firearms.
Section 7 of the act prohibits the possession, acquisition, manufacture or sale of the prohibited arms and ammunition as stated above. Section 9 of the act further prohibits the acquisition and possession, whether by sale or transfer of the firearms to young persons (those individuals who have not completed 21 years of age). Sections 24A and B of the act prohibit the possession of notified arms in disturbed areas and the carrying of notified arms in or through public places in disturbed areas respectively.
Deposition of unlawful arms
Section 21 of the Act states that an individual is required to deposit the arms in his/her possession without any delay to the appropriate officer of a police station, in the event of his/her license getting expired, revoked or suspended such that further possession of the arms by the individual becomes unlawful.
Relevant case laws in context of the Arms Act
Right to possess arms and ammunition as a fundamental right under Article 21
In the case of Ganesh Chandra Bhatt v. Distt Magistrate, Almora & Ors. (1993), the issue was whether the right to bear arms formed a part of the right to self-defence, which is a facet of the right to life and liberty under Article 21 of the Constitution. In this case, the Court observed the following:
- The right to bear arms did indeed fall within the ambit of Article 21, under the right to self-defence.
- If despite the applicant having followed the due procedure to obtain the license for a non-prohibited firearm, he/she still receives no communication from the authorities at the conclusion of three months, the license is deemed to have been granted by the government.
- The custom of worshipping firearms during the festivals of Dussehra and Diwali, which finds its roots in the Mahabharata is linked with the self-respect and dignity of a citizen which was essential for him/her to enjoy their right to life granted under Article 21.
This decision, however, was consequently overturned in the aftermath of the 1993 Bombay bomb blasts, as a result of which the constitutional protection granted to the right to bear arms was abolished and the right to bear arms has henceforth been governed solely according to the provisions of the Arms Act and is recognized as a legal right under the same.
‘Conscious possession’ as a core ingredient to establish guilt for an offence punishable under Section 25 of the Arms Act
In the case of Hari Kishan v. State (NCT Of Delhi) (2019), the issue was with regard to the interpretation of the word ‘possession’ under Section 25 of the Arms Act which dealt with the offences and penalties for individuals which resulted in imprisonment for a minimum period of three years, extendable to seven years with a fine.
The petitioner, in this case, was found to be in the alleged possession of a live cartridge in the side pocket of his bag which was detected by officials who were conducting the baggage check at the Saket metro station. The petitioner, as a result of this finding, was immediately charge-sheeted under Section 25 of the Arms Act.
The petitioner claimed that he was utterly shocked and surprised as he did not have any knowledge of the presence of the live cartridge in his bag’s side pocket and instead he was framed for the same. The petitioner had a clean record. It was also proven that there was no firearm or any weapon at all in his possession. Further, he had no knowledge of the presence of the live cartridge, or in other words, he was definitely not in conscious possession of the live cartridge.
He stated that Section 25 of the act covered conscious possession and that mere custody without the awareness of the nature of such possession could not constitute an offence under the Act. The petitioner further drew the Court’s notice to the fact that the provisions of the Act could not apply in the present case as according to Section 45 of the act itself, ‘the acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by them of any other person’ does not fall under the commission of an offence.
The Court agreed with the petitioner’s arguments and in the fact that there was not a “whisper of averment in the First Information Report (FIR) as averred in the charge sheet that the petitioner was aware of being in alleged conscious and knowledgeable possession of the ammunition in question, the FIR against the petitioner as well as the proceedings emanating therefrom were quashed”.
The facts of the above case are similar to the case of Rachelle Joel Oseran v. The State of Maharashtra and Others (2018), which dealt with the issue of ‘conscious possession’ and the Court in this case as well held the same verdict as stated above.
The Arms (Amendment) Bill, 2019
The main feature of the Arms (Amendment) Bill, 2019 was the modification of the definition of ‘arms’ to include firearms, swords and anti-aircraft missiles. Despite the attempts made by the previous act to curb the nexus of illegal firearms and criminal activity, the use of illegal firearms in the commission of offences was still rife in society. Additionally, the validity period of the arms license was extended from three to five years and the number of arms permissible to be within an individual’s possession (provided he/she is carrying a valid license) was reduced from three to two. This included arms passed on by way of a family heirloom. Under the list of prohibitions, the obtaining or procuring of unlicensed firearms was added as well as the conversion of one category of firearm to another without a valid license, which included modifications done to increase the efficiency of performance of the firearm.
One of the concerns raised with regard to the limitation of the number of arms permitted for possession was by the competitors of professional shooting as a sport in India. In order to address these concerns, the Ministry of Home Affairs, via a notification posted on the 24th of February, 2020, permitted an increase in the number of firearms that could be kept by professional shooters, as well as an enhancement in the quantity of ammunition which was to be used for their practice.
Penalties for offences
The quantum of punishment according to the Arms (Amendment) Bill, 2019 has been almost doubled as compared to the Arms Act of 1959. For example, the punishment under Section 25 (1AA) of the 1959 Act which dealt with the manufacturing, selling, repairing and possessing prohibited arms, was a minimum of seven years of imprisonment which could be extended to a maximum of 10 years. The new amendment, however, extends the minimum period of imprisonment to a period of 14 years and the maximum term can extend to imprisonment for life.
The latest plan of the Ministry of Home Affairs is to maintain a National Database of Arms Licenses, which is to serve as an official record of the holders of arms licenses, in order to regulate the same and keep illegal activities at a minimum. As of January 2021, statistics show that despite the efforts of the legislature to curb the menace of illegal firearm crimes, India continues to have the 2nd highest number of deaths due to the use of guns, most of which are unregistered and illegal. India cannot be compared to the USA with regard to gun control as the latter is a developed nation, with a higher level of literacy and a lower crime rate than India. The government is more efficient in the USA in regulating the flow of arms in the country and conducting investigations of the arms applicants. India, though moving in the same direction, still has a long way to go.
The question of whether guns can ever gain constitutional protection in India has been argued by many individuals for a long time right from our very own famous freedom fighters. According to Mahatma Gandhi, “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. If we want the Arms Act to be repealed, if we want to learn the use of arms, here is a golden opportunity. If the middle classes render voluntary help to the Government in the hour of its trial, distrust will disappear, and the ban on possessing arms will be withdrawn.”
Dr B. R. Ambedkar’s views on firearms, on the other hand, was completely opposite as can be inferred from his statement, “I personally myself cannot conceive how it would be possible for the State to carry on its administration if every individual had the right to go into the market and purchase all sorts of instruments of attack without any let or hindrance from the State.”
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