Re: 'No Threat' not enough to deny arms license.

Safarigent · Post by **Safarigent** » Tue Sep 10, 2013 5:35 am

Another good news for us folks:

NEW DELHI: In an important ruling, the Delhi high court has said an arms licence can't be denied to an individual solely on the ground that there is no specific threat to him.

"It is the applicant's perception of threat to his life and property which needs to be considered by the licencing authority in the light of law and order situation," Justice V K Jain observed on Monday while directing the state government to issue licence to a man.

The court pointed out the "harsh reality" that police "do not have an impressive record" in protecting citizens. It backed the right of a "prudent citizen" to take adequate steps to protect himself which include acquiring a licenced weapon.

Even as HC acknowledged that no citizen has a fundamental right to obtain a fire arm licence and/or ammunition and a licence cannot be claimed as a matter of right, it interpreted sections 13 and 14 of the Arms Act to hold that a licence "cannot be denied to a person in whose case a situation contemplated by sub-section (1) of section 14 does not exist, solely on the ground that there is no specific threat to him or his family."

Section 14 lays down circumstances barring grant of licence. For instance, if the license is sought for a prohibited arm or ammunition, or the applicant is prohibited by law from carrying an arm or is of unsound mind or is, for any reason, unfit for grant of a licence then it may not be granted.

Justice Jain disagreed with the argument of Anjum Javed, counsel for the state, that petitioner Vinod Kumar's need for a licence didn't appear genuine. HC said licences can't be granted or refused "on the whims and fancies" of the authorities.

HC also pointed out, "A situation requiring safety in the form of a fire arm cannot always be foreseen and may develop all of a sudden. It is not possible for the police to be present everywhere and quite often the police arrive only after the crime has been committed."

Source: http://m.timesofindia.com/city/delhi/No ... ttarget=no

inplainsight · Post by **inplainsight** » Tue Sep 10, 2013 9:07 am

I noticed the following while reading through the judgment...

No citizen has a fundamental right to obtain a fire arm licence and/or ammunition and, therefore, a fire arm licence cannot be claimed as a matter of right. The citizens are entitled to safeguard their life and liberty taking all such measures as are bound to them in law, but, possession and carrying of a fire arm is a privilege regulated by the provisions of the Arms Act, 1959.

Judgment can be found here

http://lobis.nic.in/dhc/VKJ/judgement/0 ... 312012.pdf

goodboy_mentor · Post by **goodboy_mentor** » Tue Sep 10, 2013 10:16 am

Not impressed with this judgment. There is equality under law for persons/citizens and State in the Constitution. If arms are not fundamental right of persons/citizens then they are also not fundamental right of State. It means no exemption for the State from the provisions of Arms Act 1959. If arms are not fundamental right of State, then how is State issuing a "license"? Then how is State claiming exemption under Section 45 of Arms Act 1959?

Anyways somewhat helpful judgment to get a license.

essdee1972 · Post by **essdee1972** » Tue Sep 10, 2013 11:22 am

The statement quoted by inplainsight takes away all the joy! Points to the fact that not only the Executive and the Legislature, but even the Judiciary are still bound in the same old Colonial mentality.....

Even if you use this judgement to claim a license, you will be de facto admitting to the Courts' contention that RKBA doesn't have the "R"!

sa_ali · Post by **sa_ali** » Tue Sep 10, 2013 1:05 pm

I had the same observation, The hon judge has some what squashed that being armed is fundamental right

but yes, this judgement will definitely help those in line to get license, untill the babus come up with some new excuse

goodboy_mentor · Post by **goodboy_mentor** » Tue Sep 10, 2013 1:47 pm

There is supposed to be equality before law which is guaranteed by the Constitution. If as per some court's flawed opinion, arms are not fundamental right under law, then these courts should start disarming the police and armed forces first. Else people will start seeing these courts as nothing but kangaroo courts out to twist the basic principles of justice and equality before law.

Biren · Post by **Biren** » Tue Sep 10, 2013 2:33 pm

Here,

The six fundamental rights recognised by the Indian constitution are:
1.Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
2.Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
3.Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
4.Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
5.Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
6.Right to constitutional remedies for enforcement of Fundamental Rights.

Cheers
Biren

ARAE · Post by **ARAE** » Tue Sep 10, 2013 2:46 pm

Safarigent wrote:Another good news for us folks:

NEW DELHI: In an important ruling, the Delhi high court has said an arms licence can't be denied to an individual solely on the ground that there is no specific threat to him.

"It is the applicant's perception of threat to his life and property which needs to be considered by the licencing authority in the light of law and order situation," Justice V K Jain observed on Monday while directing the state government to issue licence to a man.

The court pointed out the "harsh reality" that police "do not have an impressive record" in protecting citizens. It backed the right of a "prudent citizen" to take adequate steps to protect himself which include acquiring a licenced weapon.

Even as HC acknowledged that no citizen has a fundamental right to obtain a fire arm licence and/or ammunition and a licence cannot be claimed as a matter of right, it interpreted sections 13 and 14 of the Arms Act to hold that a licence "cannot be denied to a person in whose case a situation contemplated by sub-section (1) of section 14 does not exist, solely on the ground that there is no specific threat to him or his family."

Section 14 lays down circumstances barring grant of licence. For instance, if the license is sought for a prohibited arm or ammunition, or the applicant is prohibited by law from carrying an arm or is of unsound mind or is, for any reason, unfit for grant of a licence then it may not be granted.

Justice Jain disagreed with the argument of Anjum Javed, counsel for the state, that petitioner Vinod Kumar's need for a licence didn't appear genuine. HC said licences can't be granted or refused "on the whims and fancies" of the authorities.

HC also pointed out, "A situation requiring safety in the form of a fire arm cannot always be foreseen and may develop all of a sudden. It is not possible for the police to be present everywhere and quite often the police arrive only after the crime has been committed."

Source: http://m.timesofindia.com/city/delhi/No ... ttarget=no

goodboy_mentor · Post by **goodboy_mentor** » Tue Sep 10, 2013 7:20 pm

Biren wrote:Here,

The six fundamental rights recognised by the Indian constitution are:
1.Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
2.Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
3.Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
4.Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
5.Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
6.Right to constitutional remedies for enforcement of Fundamental Rights.

Cheers
Biren

This view that there are only six fundamental rights is fundamentally flawed and myopic. Part III of the Constitution enumerates the fundamental rights(including stated and unstated). It has from Articles 12 to 35. Surely 12 to 35 do not make six.

1.

Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision. Since a constitution is a law, and the supreme law within its domain, and authorizes statutes and other official acts which have a textual expression, the principles of constitutional interpretation are essentially the same as the principles of statutory or judicial interpretation.

Most legal scholars recognize seven main methods of judicial decisionmaking: textual, historical, functional, doctrinal, prudential, equitable, and natural, although they may differ on what each includes, and there is some overlap among them.

Textual. Decision based on the actual words of the written law, if the meaning of the words is unambiguous. Since a law is a command, then it must mean what it meant to the lawgiver, and if the meaning of the words used in it have changed since it was issued, then textual analysis must be of the words as understood by the lawgiver, which for a constitution would be the understanding of the ratifying convention or, if that is unclear, of the drafters. Some Latin maxims: A verbis legis non est recedendum. From the words of the law there is not any departure. 5 Coke 118. Noscitur à sociis. Meaning of words may be ascertained by associated words. 3 T.R. 87.

Historical. Decision based less on the actual words than on the understanding revealed by analysis of the history of the drafting and ratification of the law, for constitutions and statutes, sometimes called its legislative history, and for judicial edicts, the case history. A textual analysis for words whose meanings have changed therefore overlaps historical analysis. It arises out of such Latin maxims as Animus hominis est anima scripti. Intention is the soul of an instrument. 3 Bulst. 67.

Functional. Also called structural. Decision based on analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system. A Latin maxim is Nemo aliquam partem recte intelligere potest antequam totum perlegit. No one can properly understand a part until he has read the whole. 3 Coke Rep. 59.

Doctrinal. Decision based on prevailing practices or opinions of legal professionals, mainly legislative, executive, or judicial precedents, according to the meta-doctrine of stare decisis, which treats the principles according to which court decisions have been made as not merely advisory but as normative. Some Latin maxims are: Argumentum à simili valet in lege. An argument from a like case avails in law. Coke, Littleton, 191. Consuetudo et communis assuetudo ... interpretatur legem scriptam, si lex sit generalis. Custom and common usage ... interpret the written law, if it be general. Jenk. Cent. 273. Cursus curiæ est lex curiæ. The practice of the court is the law of the court. 3 Buls. 53. Judiciis posterioribus fides est adhibenda. Credit is to be given to the latest decisions. 13 Coke 14. Res judicata pro veritate accipitur. A thing adjudicated is received as true. Coke, Littleton, 103.

Prudential. Decision based on factors external to the law or interests of the parties in the case, such as the convenience of overburdened officials, efficiency of governmental operations, avoidance of stimulating more cases, or response to political pressure. One such consideration, avoidance of disturbing a stable body of practices, is also the main motivation for the doctrinal method. It also includes such considerations as whether a case is "ripe" for decision, or whether lesser or administrative remedies have first been exhausted. A Latin maxim is Boni judicis est lites dirimere. The duty of a good judge is to prevent litigation. 4 Coke 15.

Equitable. Also called ethical. Decision based on an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide. Often resorted to in cases in which the facts were not adequately anticipated or provided for by the lawgivers. Some scholars put various balancing tests of interests and values in the prudential category, but it works better to distinguish between prudential as balancing the interests and values of the legal system from equitable as balancing the interests and values of the parties. It arises out of the Latin maxim, Æquitas est perfecta quædam ratio quæ jus scriptum interpretatur et emendat; nulla scriptura comprehensa, sed sola ratione consistens. Equity is a sort of perfect reason which interprets and amends written law; comprehended in no code, but consistent with reason alone. Coke, Littleton, 24.

Natural. Decision based on what is required or advised by the laws of nature, or perhaps of human nature, and on what is physically or economically possible or practical, or on what is actually likely to occur. This has its origin in such ancient Latin maxims as: Jura naturæ sunt immutabilia. The laws of nature are unchangeable. Jacob. 63. Impossibilium nulla obligatio est. There is no obligation to do impossible things. D. 50, 17, 185. Lex non cogit ad impossibilia. The law does not compel the impossible. Hob. 96. Lex neminem cogit ad vana seu inutilia peragenda. The law requires no one to do vain or useless things. 5 Coke 21. Legibus sumptis desinentibus, lege naturæ utendum est. Laws of the state failing, we must act by the law of nature. 2 Rol. Rep. 98.

Source http://constitution.org/cons/prin_cons.htm

2. http://indiansforguns.com/viewtopic.php ... 30#p197742

FN-Five-Seven · Post by **FN-Five-Seven** » Thu Sep 12, 2013 8:51 pm

goodboy_mentor wrote:
Anyways somewhat helpful judgment to get a license.

Would this judgement be of any help to applicants of Arms License who are residing outside the state of New Delhi ?

F-N-Five-Seven

dheeraj1982 · Post by **dheeraj1982** » Thu Sep 12, 2013 10:31 pm

Guys,

By saying this i am not offending inplainsight views but as per my understanding a judgement is to be read as whole and not only upto a certain views or comments made therein. The judge in this jugment has said that arms is not covered under fundanmental right but he has not denied that a citizen right to protect his life is not covered under fundamental rights. It simply means that you cannot claim the arms as your right but you can get an arm/arms license for the protection of your life according the procedure established by law i.e ARMS ACT. Also the jugde has also curtailed the monoply procedure of the LA where they under the garb of notifications of the MHA were rejecting applications by overlooking section 13 and 14 of the arms act. In my view this judgement will surely bind the hands of the LA and now the so called administration will have to search for a new way to REJECT applications.

Safarigent · Post by **Safarigent** » Fri Sep 13, 2013 12:09 am

A high courts judgement has no validity outside the states boundaries. It can at best be an example.
I am sure goodboy mentor will be replying in more detail.

AgentDoubleS · Post by **AgentDoubleS** » Fri Sep 13, 2013 6:55 pm

dheeraj1982 wrote:Guys,

By saying this i am not offending inplainsight views but as per my understanding a judgement is to be read as whole and not only upto a certain views or comments made therein. The judge in this jugment has said that arms is not covered under fundanmental right but he has not denied that a citizen right to protect his life is not covered under fundamental rights. It simply means that you cannot claim the arms as your right but you can get an arm/arms license for the protection of your life according the procedure established by law i.e ARMS ACT. Also the jugde has also curtailed the monoply procedure of the LA where they under the garb of notifications of the MHA were rejecting applications by overlooking section 13 and 14 of the arms act. In my view this judgement will surely bind the hands of the LA and now the so called administration will have to search for a new way to REJECT applications.

Dheeraj, I am sure you don't offend anyone with a constructive debate. I will add my view on it too.

I lack the legal knowledge to provide clarity but it's always a pleasure to tap away an opinion here i go!

Owning a firearm is a legal right-i.e it is a priviledge provided by the creators of law. This can be taken away at the whims and wishes of the individuals who currently sit in the parliament...Well maybe I'm simplifying but it can happen should someone in the parliament start working!

The judgement supports the 'current law'. What is the guarantee the the law will remain favourable to the common citizen. The current govt has a clear policy to disarm the citizens and should the law be amended the LA could get significant more powers and the law could become unfavourable to owning firearms- not completely illegal but significantly restrictive. Issues like ammo quota and validity have not been clearly established under the current law and anyone who owns a firearm knows what a pain these 2 areas are.

However, if arms are considered a fundamental right they no longer remain a priviledge granted by the Govt. They cannot be taken away- only in the rarest of rare cases is my guess could that happen. Our freedom to speech, our freedom to choose our religion- the Govt cannot dictate- or create a law in the parliament- that governs them.

Most importantly, our right to life and our right to protection of your life is a fundamental right and if being armed is not considered a fundamental right then the day is not far when we will only have a stick and sub 9 inch blade to protect the life of our near and dear ones!

That's my basic understanding on this subject. What I do not know is if right to life is a fundamental right then how can a Govt take it away through a death penalty but that's an off topic discussion.

Regards,
SS

dheeraj1982 · Post by **dheeraj1982** » Fri Sep 13, 2013 7:42 pm

Hi SS,
Its correct that right to life and liberty is a fundametal right gauranteed to every law abiding person. I used the word person not citizen because this right is open to evryone regardless of his/her nationality. And its not only right to life but life and liberty together.But this right ceases in case of law offenders. Once you go against law you loose your liberties and if proven guilty you have to face the penalty. For law breakers/offenders article 14 equality before law is applicable which provides equality before law for everyone. Since these article and acts all are the part of our constitution. All are applicable in there own causes. Death penality is a punishment given to an convict of a henious and rarest of rare crime. It is given to a person whose presence is threat to the whole society. Thus for the protection of life and liberty of the whole society the life and liberty of the convicted criminal is taken away from him.

goodboy_mentor · Post by **goodboy_mentor** » Fri Sep 13, 2013 8:59 pm

Would this judgement be of any help to applicants of Arms License who are residing outside the state of New Delhi ?

It is only of persuasive value.

Owning a firearm is a legal right-i.e it is a priviledge provided by the creators of law. This can be taken away at the whims and wishes of the individuals who currently sit in the parliament...Well maybe I'm simplifying but it can happen should someone in the parliament start working!

It is not a privilege created by Parliament. It is a privilege guaranteed under Part III of the Constitution. In other words a fundamental right.

1. People of India gave the Constitution to themselves.

2. Constitution created the Parliament.

3. Parliament legislates on behalf of the Constitution. If something is not embedded in the Constitution, Parliament cannot legislate. In other words, all laws are flowing from the Constitution.

4. Parliament does not have power to violate fundamental rights. But Parliament has power to regulate fundamental rights by procedure established by law.

5. Legal rights flow from fundamental rights. Examples:

Right of Private Defense mentioned in Sections 96 to 106 IPC is your legal right flowing from fundamental right of Article 21 of the Constitution.

Right to Information under RTI Act 2005 is your legal right flowing from your fundamental right of freedom of speech and expression under Article 19 of the Constitution.

Right to obtain firearm license is your legal right under Arms Act 1959 which is flowing from arms as fundamental right under Articles 19 and 21 of the Constitution.

How arms are fundamental rights? Explained in brief here http://indiansforguns.com/viewtopic.php ... 30#p197742

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