Category: Research Paper
Paper Code: RP-BD-03
Page Number: 146 -168
Date of Publication: February 10, 2021
Citation: Bikash Sen Deka, The Arms Act, 1959: A Legal Analysis and Comparative Study with USA, 1, AIJACLA, 146, 146-168, (2021).
Details Of Author(s):
Bikash Sen Deka, Advocate, Gauhati High Court
ABSTRACT To maintain law and order in a country, the government lays down various laws and regulations. The defense and security agencies help to defend the state against any kind of internal or external threats. These agencies are equipped with guns and weapons and empowered to use reasonable force and at times excessive power depending upon the situation to maintain peace and security of the state. In India, the authority to use of firearms and ammunition is restricted to only the armed forces and law enforcement agencies. But, the laws relating to owning and using guns by citizens are very strict and highly regulated. The principal gun control legislation in the country is the Arms Act, 1959, which prohibits the sale, manufacture, possession, acquisition, import, export, and transport of firearms and ammunition unless under a license. The gun control regulations in India were first introduced by the British as a measure to restrict Indians from owning guns and to prevent any kind of revolt or mutiny against the British rulers. However, not all countries have such strict control over the ownership of guns. Countries such as the United States of America have a strong gun culture and the citizens of the country have a fundamental right to own guns. Thus, in a country like India where gun ownership is a privilege, it is a matter of right in the United States. The present paper primarily focuses on the Arms Act, 1959 as security legislation and the historical background of arms control legislation as well as its present legal scenario in India with a comparative study with the gun control laws and policies of the United States. KEYWORDS Arms Act, Indian Legal Regime, United States, and Weapons
In a civil society, the State and the Government are responsible to the people and therefore must administer the country efficiently and work for the development of the society and provide the citizens the necessary means for their survival. The State must maintain law and order, prevent crimes and protect its citizens against internal violence as well as external aggression. The State protects its citizens through its defense forces such as the army and law enforcement agencies such as the police. These defense forces and agencies are authorized by the State to use deadly force and weapons whenever necessary to protect the state and support its interests. They use such force and make use of weapons to be strategically, offensively, and tactically one step ahead of the enemy in the course of their various operations.
The term ‘weapon’ includes Guns, Firearms, Armaments, Ammunitions, and other defense equipment. These are the devices and objects used to inflict damage, pain, and harm. These devices or weapons are mainly used and associated with situations such as warfare, conflicts, and crimes or for defense, law enforcement, hunting, etc.
As the State is responsible to maintain law and order and defense in a country, the citizens are usually not permitted to use or possess firearms and guns. In almost all countries laws and legislations exist which either prohibit or regulate the matters relating to owing, possessing, selling, manufacturing, transferring, modifying, and using firearms and guns by the citizens. Gun laws and policies in most countries are restrictive, that is, they impose stringent regulatory measures in procuring and using guns, arms, and other weapons. However, some countries have permissive gun legislation and a strong “gun-culture” such as the United States of America, Pakistan, Nigeria, Senegal, etc.
The main reason for which law restricts or prohibits guns and firearms at the hands of civilians is to prevent and reduce violent crimes, shootings, murders, suicides, and most importantly to reduce the outbreak of armed rebellion, insurgency, and terrorist activities to operate within the state.
In India, strict regulations have been imposed on guns. Laws and regulations relating to firearm and gun control exist in the form of The Arms Act, 1959, supplemented by The Arms Rules, 1962, which prohibits the sale, manufacture, possession, acquisition, import, export, and transport of firearms and ammunition unless under a license. The present Arms Act of 1959 has been a result of the previous Indian Arms Act, 1878 enacted during the British Rule in the aftermath of the Sepoy Mutiny of 1857.
This study will primarily focus on the Arms Act, 1959 as security legislation and the historical background of arms control legislation as well as its present legal scenario in India with a comparative study with the gun control laws and policies of the United States.
HISTORICAL BACKGROUND OF ARMS CONTROL LEGISLATION 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-Lytton 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.
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. 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.
THE ARMS ACT, 1959: A LEGAL OVERVIEW AND ANALYSIS
Guns, arms, and ammunition are important and integral aspects of the penal laws of India as these are objects used for security, defense as well as commission of crimes. In general, people of the society have reasonable doubts and concerns regarding free possession and use of guns and firearms. As a result arms and guns are required to be in safe and responsible hands and are to be used reasonably and carefully. To regulate the rules relating to arms and guns stringent and effective security legislation and control measures are required. In India, the law relating to possession and control of guns, firearms, and ammunition is governed by the Arms Act, 1959.
The Arms Act, 1959 is an act to consolidate and amend the law relating to arms and ammunition. The Arms Act, 1959 is the principal gun control legislation in India that has been enacted to curb illegal weapons and violence arising from them. The Act derives its core provisions from the previous Arms Act of 1878. The Act of 1878 continued to remain in operation for 12 years after the Indian independence. To bring changes to the gun control laws, the Government of India introduced the Indian Arms (Amendment) Bill (49 of 1953) in the Lok Sabha on 27th November, 1953. The Bill was discussed in both the House of Parliament and was also circulated for public opinion. The Bill was re-drafted making necessary changes to meet the recommendations and opinions and was again introduced in the Parliament in 1958. The Bill was passed by both Houses of Parliament and it received the assent of the President of India on 23rd December 1959. The Act commenced on 1 October 1962 and applies to the whole of the territory of India.
In Atar Singh v. State, Section 1(3) of the Arms Act, 1959, was challenged on the ground that it was unconstitutional. The section provides that the Arms Act, 1959 was to come into force on such date as the Central Government may by notification in the official gazette appoint. The court observed that the delegation of the power to fix the date of commencement of the Act amounts to a delegated legislative authority, thus, the Courts of law must take a liberal view and should not ordinarily declare such a provision to be ultra-vires. The court held that Section 1(3) of the Arms Act, 1959, giving power to the Central Government to lay down the date of commencement of the Act is thus not unconstitutional.
The salient features of The Arms Act, 1959 are as follows:
a) To limit the acquisition, ownership, and usage of firearms by placing reasonable restrictions and measures such as gun licenses.
b) To lay down restrictions on the manufacture, sale, import, export, and transport of arms and ammunition.
c) To lay down procedures and mechanisms for issuing, renewing, revoking, suspending as well as appeals in respect of gun licenses to persons, agencies and factories.
d) To empower the Government, administering authorities and officials to exercise powers in regards to gun licenses, search and seizures, and issuing prohibitory orders.
e) To lay down punishments and penalties for contravention of the provisions of the Act.
f) To empower the Government to make rules to give effect to the provisions of the Act.
The Arms Act, 1959 defines the term “arms” as articles of any description designed or adapted as weapons for offense or defense, and includes firearms, sharp-edged, and other deadly weapons, and parts of, and machinery for manufacturing arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons.
Section 2(e) of the Act defines “firearms” as any description of arms which has been designed or adapted to discharge projectiles of any kind by the action of an explosive or other forms of energy, and includes artillery, hand-grenades, riot-pistols or any kind of such weapons for discharging noxious things or any such accessories, or any parts and machinery for manufacturing firearms, and carriages, platforms and appliances for mounting, transporting and serving artillery.
Section 2(i) of the Act defines “prohibited arms”. The Arms Act has classified firearms into two categories: Prohibited Bore designated as (PB) and Non-Prohibited Bore designated as (NPB). All semi-automatic and fully automatic firearms are categorized as Prohibited Bore. Licenses for NPB category guns are issued by the State Governments while the licenses for PB guns are issued by the Central Government.
Under the Act, ammunition means ammunition for any firearm, and it includes rockets, bombs, grenades, shells, missiles, charges, fuses, friction tubes, and other articles capable of being used with firearms.
Chapter II of the Act deals with the provisions for acquisition, possession, manufacture, sale, import, export, and transport of arms and ammunition. This chapter mainly provides for the requirement of licenses for a person, agency, or factory to own, manufacture, sell, or transport guns, firearms, and ammunition.
The Arms Act, 1959 does not recognize nor provide for the right to own a gun. A person could only possess and use a gun if he has been issued a gun license by the appropriate authority. The appropriate authority or the licensing authority has discretion in issuing licenses and generally denies issuing such license if no sufficient or satisfactory reason is provided by the applicant.
Section 3(1) of the Act states that a person shall not acquire, possess or carry any firearm or ammunition without holding a valid license issued to him following the provisions of the Act and rules made there-under. Section 3 further provides that a person cannot possess at a time more than 3 firearms. This provision, however, does not apply to any dealer in firearms or any licensed and recognized member of any rifle club or association.
A person possessing proper license issued to him by the licensing authority according to the provisions of the Act may use, manufacture, sell, transfer, convert, repair, test or prove any firearm or any other arms of such class or description as prescribed by the license and rules applicable to him. This section thereby discourages and prohibits the illegal arms industry by restricting licenses for illegal arms production.
Moreover, the Act provides that no person shall own, possess, use, manufacture, sell, transport or modify or test any such articles which have been classified as prohibited arms or prohibited ammunition under Section 2(i) and 2(h) of the Act respectively without the special permission granted by the Central Government in that respect. The Act further prohibits any person from removing or altering any identification mark imprinted on a firearm and prohibits the sale or transfer of firearms which does not bear distinct identification marks.
The Act consists of provisions prohibiting any person from modifying or shortening any guns or converting any imitation firearms into firearms without proper license.
Section 9 deals with the capacity to acquire, possess, and carry any firearms and such other articles. It provides that no person shall acquire, have in his possession or carry any firearm or ammunition:
(i) if the age of 21 years is not completed; or
(ii) if he has been sentenced to imprisonment for any term for an offense involving violence or moral turpitude within 5 years of the expiry of that sentence, or
(iii) if he has been ordered to execute a bond for keeping the peace or for good behavior under the Criminal Procedure Code.
Section 9 also prohibits any person to sell or transfer any firearm to any person not possessing the required capacity mentioned above as well as to any person of unsound mind at the time of such sale or transfer, etc.An applicant for a firearm license in India must pass a background check which considers criminal, mental health, and domestic violence records.
Licenses are also required under the provisions of the Act to import, export, or transferring of arms and ammunition to and from India by land, sea, or air. No such transfer of arms, ammunition, and such other related goods can be made without proper license or permission of the appropriate government or authority in that behalf. The Central Government has the power to prohibit and restrict the import, export, or transfer of arms and ammunitions by notification published in the Official Gazette.
Chapter III of the Arms Act, 1959 deals with the provisions relating to gun licenses and procedures for issuing, renewing, revoking, and suspending gun licenses to persons.
Section 13 of the Act provides the procedure to be followed by the applicant for the grant of a gun license. The provision requires the application to be made in the form prescribed along with the necessary particulars, documents, and fees as specified. When an application for a grant of license is received, the licensing authority must follow certain procedural requirements and make necessary inquiries, and thereafter, such license can be either granted or refused. The licensing authority may refuse to grant any license if the license is sought for any prohibited arms or ammunitions or the applicant does not possess the sufficient capacity to possess such firearms or the licensing authority considers that reasons for granting the license is not sufficient or the license may be refused for public peace and safety.
In Ganesh Chandra Bhatt v. District Magistrate, a writ petition was filed praying for mandamus directing the respondents to consider the application of the petitioner for the grant of license for a Revolver under the Arms Act, 1959. The court allowed the writ petition and directed the respondents to issue an arms license to the petitioner. The court further held that an application made for a license of non-prohibited arm should be disposed of within 3 months, and if it is not disposed of on the expiry of 3 months, it shall be deemed to be granted.
In Kailash Nath v. State of U.P., the Court constituting of 5 Judge Bench held that grant of an arms license is not a right but a privilege. The court observed that every citizen has the right to the application for a grant of arms license for the self-defense and protection of property but such protection and defense is primarily the function of the State. The court further observed that the right to be armed does not come within the ambit of Article 21 of the Constitution which provides for protection of life and personal liberty.
In-State of U.P. v. Jaswant Singh Sarna, the respondent was an arms dealer having a valid license. After the license expired, the respondent applied for renewal. The State government refused the renewal under Section 14(1)(b)(i)(3) of the Arms Act, 1959 read with Section 15(3) of that Act on the ground that the respondent was not fit to hold the licenses. The respondent filed a petition against the order and the court allowed the petition and directed the State government to reconsider the renewal application of the respondent. The State government appealed against the appeal of the court, but the appeal was dismissed. In this case, the court further observed that the Arms Act, 1859 is a progressive legislation and highlights the liberal views of the people which was noticeably absent in the Arms Act, 1878.
Provisions for appeals have also been provided in the Act by which any person who is dissatisfied by the order of the licensing authority may appeal to the appellate authority constituted by the appropriate government whose decision shall be final.
Chapter IV of the Arms Act deals with provisions that empower the Government, administering authorities, and officials to exercise powers concerning gun licenses, search and seizures, and issuing prohibitory orders.
Section 19 of the Act empowers any police officer or any other officer to demand any person carrying any arms or ammunition to produce his license. If the person refuses or fails to produce such a license, the officer may require him to give his name and address to the officer. The officer is also empowered to seize such arms and ammunition or arrest the person without a warrant if he considers it to be necessary or he has any suspicion. 
In Gaya Din v. State, a revision petition was filed by the applicant who had been convicted under Section 19(f) of the Arms Act and punished with 18 months of rigorous imprisonment for possessing a pistol and cartridges. The applicant pleaded not guilty and denied that the pistol and cartridges were recovered from his possession. The prosecution gave significant evidence to prove the aforesaid recovery. The trial court, based on the available evidence, convicted the applicant under Section 19(f) of the Arms Act and sentenced him as above. His appeal before the Sessions Court was dismissed as a result he filed this revision in the High Court. The High Court dismissed the revision and maintained the conviction and sentence of the applicant.
The Act imposes a duty upon a person to deposit any arms and ammunition in his possession in the event of expiration, suspension, or revocation of license or by the issue of any notification or any other reason by which such possession has ceased to be lawful, before the nearest police station, licensed dealer or unit armory.
Sections 22, 23, and 24 deal with provisions relating to search, seizure, and detention concerning arms and ammunition and other such related goods and such procedure to be observed by the administering authorities. Sections 24A and 24B deal with provisions prohibiting the possession and carrying of notified arms in disturbed areas.
Chapter V of the Arms Act, 1959 lays down provisions dealing with offenses and penalties.
The Act, under Section 25, provides for punishment for certain offenses. It states that any person who manufactures, sells, transfers, imports, exports, repairs, tests, modifies, or shortens the barrel of any gun or firearm or converts any imitation firearm into a firearm shall be punished with imprisonment. The sentence of imprisonment shall not be less than 3 years but may extend to 7 years along with a fine. This Section mainly provides for punishment for the contravention of the provisions of the Act.
In Guljarsing v. State of Maharashtra, the applicants were found guilty under Section 3 read with Section 25(a) of the Arms Act, 1959 for possessing a revolver like a weapon and ammunition. The prosecution argued that the evidence so recovered from the applicants were actually within the definition of the term "ammunition" under Section 2(1)(b) as well the definition of "arms" contained in Section 2(1)(c) of the Act. However, the accused denied such allegations and claimed that the articles recovered were not actual arms and ammunition. The court, after hearing both the parties and examining the evidence at hand was of the view that there is no material placed by the prosecution to prove that articles seized are 'arms" and therefore the arguments of the prosecution fall short. Although, an article may look like a “firearm”, but it may on test prove to be a useless gadget or a mere showpiece. Therefore, the court acquitted the accused-applicants.
Section 25(1A) provides that any person who carries or possesses any prohibited arms or ammunition has to be imprisoned and fined as specified by the Act.
In Sanjay Dutt v. State through C.B.I, the accused was found to have an AK-56 rifle which is prohibited under the Arms Act, 1959. He was arrested and charged with Sections 3(3), 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 as well as Sections 3 and 7 read with sections 25(1A) and (1B) of Arms Act, 1959. The TADA court acquitted the accused under the Terrorist and Disruptive Activities (Prevention) Act due to lack of evidence that can link the accused to terrorist activities but he was found guilty under the Arms Act for illegal possession of weapons. He was convicted and sentenced to a six-year jail term. A special leave petition was filed by which the case was brought before the Supreme Court which upheld the decision of the TADA court but reduced his sentence to 5 years of rigorous imprisonment for unauthorized possessing the arms and ammunition.
Punishment has been provided for using arms or ammunition by violating the provisions of section 5. Such punishment shall be imprisonment of the offender for a period of 3 years which may extend to 7 years along with a fine. If a person attempts or uses any firearm or any such imitation to resist or prevent lawful arrest and detention, he may be punished with imprisonment for a period that may extend to 7 years.
In Mahendra Singh v. State of West Bengal, a bag with live cartridges and a gun without any license or permit was recovered from the possession of the appellant. The appellant was prosecuted and was convicted under Section 25(1A) and 27 of the Act, and was sentenced to two years of rigorous imprisonment. His appeal to the High Court was summarily dismissed but a special leave to appeal to the Court was granted. The Court held that based on the evidence on record it is not possible to hold that the existence of the arms in the possession of the appellant was without his knowledge and intention. Therefore, his conviction under Section 25(1A) was justified. However, there exists no evidence to support the conviction for the offense under Section 27, and therefore, his conviction under this section cannot sustain.
Section 29 of the Act provides punishment to those persons who purchase arms and ammunition from persons who do not possess valid gun licenses. This provision also lays down punishment for those persons who sell or transfer arms and ammunition to persons not having a valid license. Such persons shall be punished with imprisonment for a term of 3 years or with fine or with both.
The Act provides that any person who contravenes or violates any condition of a license or any provision of the Act or any other rule made there-under, for which no punishment is provided elsewhere in this Act, shall be punishable with imprisonment for a term which may extend to 6 months, or with fine, or with both. Any person who has been convicted of an offense under the Act, who again is convicted of an offense under the Act shall be punished with double of the previous penalty provided. 
Section 32 of the Act provides for confiscation of arms or ammunition of a person who is convicted of any offense committed by him in respect of the provisions of the Act.
Section 33 of the Act deals with the offenses committed by companies. Any contravention of the Act committed by any person in charge or responsible to the company along with the company itself shall be deemed guilty and shall be punished accordingly.
Chapter VI of the Act deals with various miscellaneous provisions.
Section 36 imposes a duty upon the people to give information regarding the commission of offenses under the Act to any police officer or competent magistrate. Provisions dealing with arrests and searches are dealt with under Section 37, while Section 38 makes offenses committed under the Act cognizable within the meaning of the Code of Civil Procedure. The Central Government has been empowered under this Act to direct any officer of the Government to conduct a census of firearms in any area.
The Central Government is also empowered to make rules to carry out the purposes of the Arms Act, 1959. Such rules may include the matters relating to the appointment, jurisdiction, etc of licensing authorities, form, fee, and particulars of application for grant or renewal of a license or suspension or revocation of license, such as other matters provided under Section 44. By Section 46 of the Arms Act, 1959, the previous Arms Act, 1878 has been repealed.
The Arms Act, 1959 provides that the Central Government is empowered to make rules for the furtherance of the objects of the Act by Section 44. For this purpose, the Central Government has enacted the Arms Rules, 1962 which lays down various rules which supplement the objects and provisions of the Arms Act, 1959. The Central Government is empowered to make rules under the Arms Rules, 1962 in the exercise of the powers conferred by sections 5, 9, 10, 11, 12, 13, 16, 17, 18, 21, 41, and 44 of the Arms Act 1959.
The Arms Rules, 1962 lays down rules to carry out the purposes of the Arms Act, 1959. The Arms Rules, 1962 lays down rules and regulations on the following matters:
(a) the powers, functions, and appointment of licensing authorities;
(b) the form and manner of application for the grant or renewal of a license;
(c) the forms, conditions, and procedures by which any license may be granted or refused, renewed, varied, suspended, or revoked;
(d) the period for which any license shall continue to be in force;
(e) the fees payable in respect of any application for the grant or renewal of a license;
(f) how the identification mark of a maker or manufacturer on a firearm shall be stamped shown;
(g) the procedure for the test or proof of any firearms;
(h) the firearms that may be used in the course of training and the age and the conditions for their use by any persons;
(i) the authority to make appeals and the forms and procedure to be followed for making appeals;
(j) the maintenance of records or accounts of anything done under a license other than a license;
(k) the entry and inspection by any police officer or by any officer of any premises where arms or ammunition are made or stored;
(l) the conditions subject to which arms or ammunition may be deposited with a licensed dealer or in a unit armory;
(m) any other matters dealt with under the Arms Rules, 1962.
Schedule I of the Arms Rules, 1962 provides a detailed description of prohibited arms and prohibited ammunition and restricted arms and restricted ammunition. The private ownership and possession of fully automatic weapons is prohibited while the private ownership and possession of semi-automatic assault weapons and handguns are permitted under license for specific purposes. Rule 32 prohibits carrying a firearm in plain view in a public place but carrying a concealed firearm in a public place is allowed.
PRESENT SCENARIO OF THE GUN CONTROL LAWS IN INDIA AND STATISTICAL ANALYSIS
Present Scenario of Gun Legislations in India
The Arms Act, 1959 has been the paramount legal statute dealing with arms control in independent India since its adoption by the Parliament in the year 1959. The Arms Act, supplemented by the Arms Rules, 1962, primarily governs the sale, manufacture, possession, acquisition, license, import, export, and transport of firearms and ammunition in India. The Act owes its origin to the previous Arms Act of 1878 and has been introduced by making significant amendments to meet the needs of independent India. The Arms Act, 1959 has been amended in 1971, 1983, 1985, 1988, 1995, 2010, and most recently in 2016 to make the Act relevant in the current social scenario.
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.
With the growing terrorist activities, crimes, violence, and mass shootings around the world, the Government of India has made the laws relating to ownership and possession of guns more stringent in recent times. India is considered to have the most rigid and strict gun control laws and policies in the world. The new laws introduced by the government are tougher than the previous legislation. These new rules require prospective gun owners to show that they possess the requisite criteria, must pass through a strict background check, and have to go through a safety training course relating to arms which involves safe handling, firing technique, and the procedure for their safekeeping or transportation.
Licenses are generally issued for ownership and possession only within state boundaries and to possess guns in more than one state a license issued by the Central Government is mandatory. The government has also made laws more restrictive in respect of the different classes and descriptions of firearms and ammunition. Under the new rules, air guns will also require an arms license.
Indian citizens may be allowed in certain cases to own and possess firearms under strict restrictions and permits. Generally, ordinary citizens are granted a gun license on the following grounds, namely self-defense, professional sporting, and crop protection. However, in practice, many persons are acquiring firearms and guns through legal procedure for various immoral and illegal purposes. Government has discretionary powers regarding the approval or denial of grant of license. In most cases, we see that licenses to ordinary citizens are denied but politically influential people are granted gun licenses with no hassle at all.
Apart from legal gun ownership, there are also several cases of black marketing of illegal arms and ammunition in India. The illegal gun trade is a major reason for the growing crimes in the country. Furthermore, in the states and regions where farming and harvesting of crops are widely practiced such as Uttar Pradesh, Haryana, Madhya Pradesh, Punjab, Bihar, etc, there exists a booming illegal gun industry as a result of the wide circulation of legal gun and firearms.
The tradition of gun culture is usually associated with countries like United State, but, in recent times, India has seen a trend for acquisition and possession of guns, especially in the Northern and Central Indian states, namely Uttar Pradesh, Haryana, Madhya Pradesh, Rajasthan, Bihar, etc. In these states, the “gun culture” tradition has emerged and gun ownership and possession are considered to be a symbol of pride and prestige. These states not only have a significant percentage of guns and firearms in their possession but also the number of crimes in these states are also very high than in other states.
Statistical Overview of Gun-Related Matters in India
As per the recent statistics released by the Union Home Ministry, India has a total of 33,69,444 active gun licenses as of December 31, 2016. Uttar Pradesh holds the top spot among the Indian states in regards to the number of active gun licenses. In Uttar Pradesh, 12,77,914 people have been issued gun licenses to carry weapons in the name of self-defense and personal security. The states of Jammu and Kashmir, Punjab, Madhya Pradesh, Haryana, Rajasthan, and Karnataka also have a significant number of gun license holders.
Statistics show that more than 60% of 100,000 firearms seized by the government between 2014 and 2015 were found to be unlicensed with almost 30,000 of those belonging to Uttar Pradesh. As of 2016, a total of 53,929 cases were registered under the Arms Act, 1959 in which 56,516 firearms were seized, out of which 36,064 of those firearms were licensed/improvised/crude/country made and 1,052 arms were licensed/factory made. During 2016, Uttar Pradesh(27,189) has reported a maximum number of seizure of arms under the Arms Act followed by Madhya Pradesh (8,019) and Rajasthan (5,757). A total of 1,06,900 number of ammunitions were seized during2016.
The National Crime Records Bureau (NCRB) has released a detailed report of the crimes and offenses committed in India as of 2016. The records show that the number of victims murdered by use of firearms is 3775 out of which 322 of the victims have been murdered using licensed firearms while the rest of 3453 victims were killed using unlicensed firearms. A total of 288 cases have been reported against juveniles under the Arms Act, out of which, a majority of the cases have been reported in Bihar (79), Madhya Pradesh (38), and Rajasthan (19).
In 2016, the number of special and local law (SLL) crimes registered in states and union territories under the Arms and Explosives related Acts have risen from 57,668 in the previous year to 60,560, out of which 55,660 have been registered under the Arms Act.
GUN LAWS PREVAILING IN USA: A COMPARATIVE STUDY WITH INDIA
Gun Laws in the United States of America
The United States of America, one of the most developed and powerful countries, has some of the most flexible and permissive gun laws and regulations in the world. The United States recognizes “Gun culture” as part of its history, tradition, and practice. The gun culture in the United States has a long and significant history. It dates back to the times of the American War of Independence (1775–1783). The Americans, in those times, owned guns for self-defense, hunting, and sport. Due to occasional conflicts between the colonial rulers and the revolutionaries, the ordinary people were often called upon to pick up their arms and join the fight whenever required. Civilian militia often volunteered to fight for independence. During those times, gun ownership and possession was not just a trend or culture but a necessary weapon for survival and protection of one’s life.
The United States of America gained independence from Great Britain on July 4, 1776. The United States Constitution was adopted on September 17, 1787. On December 15, 1791, the Second Amendment to the United States Constitution was adopted as part of the Bill of Rights. The Second Amendment 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.
In the case of District of Columbia v. Heller, the Supreme Court of the United States held that the Second Amendment protects an individual's right to possess a firearm, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home. Furthermore, the Court held that the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
In McDonald v. City of Chicago, the Supreme Court of the United States held that the Second Amendment to the United States Constitution, which guarantees “the right of the people to keep and bear arms”, applies not just to the federal government laws but also applies to state and local laws.
United States is a federal state and therefore, both the federal and state governments have the power to make laws and regulations relating to gun control. Although the federal Constitution protects the right to keep and bear arms under the Second Amendment, most state governments have also guaranteed this right in their constitutions as well as have passed state gun control laws. These state gun laws are independent of the federal laws and vary in structure, form, rules, and restrictions from state to state. Apart from federal and state laws, there are also various local laws prevailing in certain territories and regions. Out of the 50 states of the United States, 44 of those states have adopted laws as well as provisions in their respective constitutions in the line of the Second Amendment of the U.S. Constitution to uphold the right to keep and bear arms. The other six states, namely California, Iowa, Maryland, Minnesota, New Jersey, and New York have laid down special rules and restrictions different than the majority of the American states; however, the statutory civil rights laws contain a provision virtually identical to the Second Amendment.
The federal gun laws and regulation, dealing with the manufacture, trade, possession, transfer, record keeping, transport, and destruction of firearms, ammunition, and firearms accessories, are enforced by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) which is a federal law enforcement agency responsible for investigating and preventing federal and other offenses involving the unlawful use, manufacture, and possession of firearms and explosives, etc. The ATF also regulates the standards for issuing licenses to gun vendors. The state laws and regulations are enforced by the state enforcement agencies and departments.
A few federal legislation which deal with matters regulating the sale, possession, and use of firearms and ammunition are: National Firearms Act of 1934, Federal Firearms Act of 1938, Gun Control Act of 1968, Firearms Owners' Protection Act of 1986, Law Enforcement Officers Safety Act of 2004, Protection of Lawful Commerce in Arms Act of 2005, etc.
In general, the following persons are capable to own and possess guns and firearms under certain restrictions within the United States:
a) US citizens
b) resident aliens permanently living in the US
c) non-immigrant aliens admitted under specific categories
The Gun Control Act of 1968 (GCA) requires citizens and legal residents to be at least 18 years of age to purchase shotguns or rifles and ammunition. All other firearms such as handguns can only be sold to people 21 years of age and older.
However, federal law as well as state laws prohibit and restrict the sale of guns to fugitives, people deemed a danger to society, patients involuntarily committed to mental institutions, people with prior felony convictions that include a prison sentence or misdemeanors as well as those who have been found guilty of unlawfully possessing or using controlled substances. In the United States there exists a system of background check which determines whether a prospective buyer is eligible to purchase a firearm or not.
In today’s time, the people of the United States are divided in respect of the laws dealing with guns. Some sections of the society are pro-gun, who strongly support the rights protected under the Second Amendment of the U.S. Constitution while another section is against gun rights and supports the need for strong gun control legislation. As a result of recent terrorist attacks, mass shootings, and rise in crimes in the United States, voices are being raised against gun rights and prohibition of guns in the hands of the citizens, however, due to the presence of constitutional protection of gun rights, rigid legal processes, social and political difficulties and the presence of a strong organization that advocates for gun rights such as National Rifle Association of America, the gun rights under the Second Amendment of the U.S. Constitution stands firm at present.
A Comparative Study of the Gun Laws in India and USA
The United States Constitution guarantees and protects the right to keep and bear arms under the Second Amendment. The Second Amendment allows all Americans to carry weapons as a constitutional right and fundamental right of the people and is part of the Bill of Rights. In India, there is no constitutional provision that provides for the right of a person to own and possess firearms like the United States. The right to keep and bear arms does not find its place in the Constitution of India. However, the constitution does not expressly at any stage debar an Indian citizen from carrying arms except Article 19(1)(b) which provides the right to assemble peacefully without arms. Civilian ownership of guns in India is not considered to be a right recognized by the statutes but rather a prerogative and entitlement given by the state to certain competent persons. Thus, all Indian citizens have an implied right to own and carry weapons under certain restrictions.
In both India and the United States of America, Ownership of guns and firearms is permitted but the laws that govern ownership of guns are different in each country. In India, matters relating to arms, firearms, ammunition, and explosives are exclusive subjects of the Union Parliament as these subjects are placed under the Union List in the Seventh Schedule of the Constitution of India. As a result, all laws relating to arms, firearms, ammunition, and explosives are enacted by the Indian Parliament and applicable to all states of the Union. No state can enact a separate arms law. Therefore, the Arms Act, 1959, is the principal legislation that governs the laws relating to ownership, usage, and licenses for firearms, guns, and ammunition and applies to all the states. However, since the United States is a true federal state, both the center and states have their constitutions and have the power to make laws independent of each other. Even though the provision of the Second Amendment is a constitutional guarantee and the federal government has enacted various laws dealing with federal gun control policies, every state of the United States have their gun laws and policies which are distinct and vary from state to state. Therefore, regulation of guns is not only a federal policy but also a state policy.
In India, the Arms Act, 1959 restricts the ownership of guns. The Act lays down provisions that state that all Indian citizens shall require an appropriate license to own any firearm issued by an appropriate licensing authority. Whereas, in the United States, no such restrictions in possessing and owning firearms exist, and American citizens can freely own and possess firearms and guns.
In India, restrictions and prohibitions have been placed for the ownership and possession of certain classes of guns. The Arms Act specifically restricts the issue of licenses for semi-automatic and fully automatic firearms that are categorized as Prohibited Bore. Whereas, in the United States, no such type of restrictions have been placed on any class or description of firearms and caliber of weapon and American citizens can own any type of firearms.
CONCLUSION AND SUGGESTIONS
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. The Arms Act, 1959, is considered as a security legislation as it ensures that proper limitations and restrictions are enforced upon the matters relating to guns and firearms to maintain public order, protect the rights of the people, and prevent the concentration of guns in the wrong hands. The objective of the Act is to lay down rules relating to gun control rather than to promote gun rights. The main reason for the enactment of the Act was not only to regulate gun possession, manufacture, and business but also to promote the underlying object to curb, prevent and reduce crimes, felonies, rackets, and illegal acts involving guns and firearms. The Arms Act, 1959 has been successful in attaining its objective and laying down the standards of gun control. The Act stands firm in dealing with almost all aspects of gun regulation such as sale, manufacture, possession, acquisition, import, export, and transport of firearms and ammunition.
The attitude towards gun laws has divided the people of the country. A majority of the population are of the view that the laws controlling arms possession is necessary to curb illegal weapons and prevent crimes and violence arising from them. People in India consider that reducing the limits placed upon gun ownership in India, like the United States, would be detrimental to the policies of peace, tranquillity, and public order. The promotion of gun culture in India would only result in facilitating criminal behavior, increase in crimes, violence, and terrorism. In recent times, efforts and initiatives have been made by certain 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 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.
In recent times, the government has been responsive to the contentions people might have for and against the gun control policies in India. 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. Presently, the gun policies in India have seen positive developments as the laws have become more flexible in allowing permits for the possession of firearms on the grounds of self-defense, sports, and crop protection. However, the nation might not be ready in bringing immediate changes and alterations of the gun laws and policies as it would result in entrusting upon the society and the state a high sense of social responsibility as well as social risks, nonetheless, with the changing social conditions and current lenient and constructive approach adopted by the judiciary these policies are likely to change gradually in the years to come.
By the study carried out in respect of gun control legislation and policies, the researcher would like to put forward the following suggestions:
a) The right to keep and bear arms should not be recognized as a fundamental right in India. Owning guns should not be a right but a privilege granted by the government to responsible citizens.
b) Permits and licenses for gun ownership, possession, manufacture, sale, transport, etc. should be granted after proper scrutiny, strict background check procedures, and compliance with requisite criteria.
c) The government should form “Gun-free zones” where no person should be allowed to possess guns. Gun-free zones should usually be the populated city-centers and residential areas. Further, the government should permit gun license leniently in those areas and regions which are specified as “Hostile zones”, where violence and conflicts occasionally takes place.
d) Penalties and punishments for contravention of the Arms Act should be made more stringent by imposing hefty fines and longer sentences to curb and reduce offenses relating to guns.
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