Letter to the Home Secretary, Gujarat

[ankur_ank007]

Dear Learned Seniors and Friends,

I am writing a letter to the Home Secretary of Gujarat State for amending the Application Form for the Application of an Arms License and directing all the Licensing Authorities as well as Police Officials to consider License Applications in light of the law and directives of the Honourable Supreme Court of India as well as High Courts at various judicatures.

I am attaching a draft of the letter here. I would request you to provide your valued feedback so that I can frame my letter in an impressive way. Also shall be sending an edited copy of the same letter as a PIL to High Court of Gujarat also to direct the LAs to do the needful. I shall be obliged if you can provide your valued suggestions as well as provide some legal insights too (eg; judgements, interpretations of various Sections of the Constitution and IPC etc.)


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For some reason I am unable to attach the file.

The draft is as follows:




To,
The Home Secretary,
Government of Gujarat

Sub: Request for the review and amendment to the existing Application Form for the Grant of Arms Licence for Self Protection under Arms Act of 1959 and request for directives to all Licensing Authorities.

Dear Sir,

My name is Ankur Srivastava, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
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I have reviewed the application form available for the application of Arms License for Self Protection (Form No. 52) received from the Collector’s Office and Jan Seva Kendra, Gandhinagar, Gujarat (as well as available on the Gujarat State web portal and Web Sites of Police Department of various districts of Gujarat. In the application form, there are certain points which are in contravention to the Arms Act of India 1959 as well as the Basic Structure of the Constitution of The Republic of India.
Apart from this the, supporting documents asked for and certain queries raised by the Licensing Authority during the course of review of an application for the grant of license as well as by the Police Department during the verification and submission of report to the Licensing Authority.
I shall be dividing my letter into two parts; “Part-A” and “Part-B”, “Part-A” pointing out the various points of concern in the points mentioned in the Application Form (Form No. 52) and “Part-B” dealing with the points raised by the Licensing Authorities as well as Police Department during the due process of review of the application for the grant of an Arms License under Arms Act of India 1959.
I sincerely request you to consider my letter as an application/petition and direct all the licensing authorities and Superintendent of Police and Station House Officers of all the police stations in the state to deal with applications made for the grant of an arms license under Arms Act of India 1959 in light of the law of the land and respect the rights of the citizens of India granted by the Constitution of India and under the light of the various decisions of Honourable Supreme Court of India as well as Honourable High Courts of Judicature of different states.
I would also request you to kindly review the various Application Forms for the Grant of an Arms License under the Arms Act of India 1959 and request you to kindly rectify and amend the forms in the light of the Constitution of India, Arms Act of India 1959, Indian Penal Code and other laws of the land.

The issues in the current form for the Application of Grant of an Arms License for self defence is as follows:


“PART-A”

1. Checklist attached with the Form 52 under (grant of an arms license under Arms act of India 1959) in Serial No. 7 of the checklist asks for “Attested copy of Ration Card”, this should be narrowly defined and should be provided with a list of other Identification Proofs issued by the State Government or the Government of India such as PAN Card, Aadhaar Card (UID Card), Passport, Voter’s Id Card, Driver’s License etc, since the sole purpose of issuing Ration Card is to provide controlled rationing to people (APL & BPL) for commodities. Millions of people in India do not hold ration card since they are not interested in getting rationed commodities from Public Distribution Systems or simply they don’t want a ration card as they can afford commodities available in open retail market. Other Identification Proofs must be accepted and hence the list of optional Id proofs must be mentioned in the checklist to avoid confusion.
2. The same check list, in Sr. No. 8 mentions “Proof of threat to life”. I would like to provide you some judgements where it has been held by various High Courts of Judicatures that threat to life can be perceived as well as unforeseen. And hence in the true light of law and justice, requirement of such a proof cannot be held constitutional.
a. In the High Court of Judicature- Andhra Pradesh at Hyderabad (Special Original Jurisdiction) Writ Petition No. 21780 of 2009 Honourable Mr. Justice C. V. Nagarjuna Reddy held that “It is an undeniable fact that the present day society is strife torn. Instances of burglary, dacoity, house breaking, robbery etc. are on increase on one hand and anti-social and anti-national elements are on a rampage on another. A situation may develop into a sudden and unforeseen manner, eg. A gang of dacoits may suddenly break into the house of a citizen in the dead of the night or a terrorist may try to kill a person or a sudden riot may take place without anyone anticipating even moments before such events taking place. The state is unable to fully protect the lives of its citizens and more often the police arrives at the scene after the damage is done only to find out the cause for the occurrence. As a result, the innocent victims are falling prey to the violence unleashed by desperados. It is in this situation that the state should feel the responsibility of protecting the lives and properties of the citizen by nationally interpreting the provisions of the Act to advance the purpose for which it is made.
b. In the same case the Honourable justice held “Apart from the statutory provisions referred to above, there exists a constitutional dimension to the case. Article 21 of the Constitution of India mandates that no person shall be deprived of his life and personal liberty except the procedure established by law. Over a period, judicial interpretation of Article 21 expands its horizon by leaps and bounds. The restricted interpretation of the article which was held to encompass many facets of human life. In M Nagaraj Vs. Union of India the Supreme Court traced change of trajectory of interpretation of Article 21 three decades after A. K Gopalan (2 Supra).
c. Identical question was considered by the learned Single Judge in Case of Ram Khelawan Misra Vs. state of U.P. and another, 1982 A.W.C.123 and in paragraph nos. 6 and 10 of the aforesaid judgment this court held as under:
"6. In the present case, the District Magistrate has in his order stated that
the S.D.M. and the Superintendent of Police have written ' No objection' on the application of the petitioner, but that was not a recommendation for the grant of a licence. He has ultimately observed that the need of the applicant was not genuine. It would, therefore, be seen that the order passed by the District Magistrate does not come under any of the clauses of Sec. of the Act. The expression to be for any reason unfit for a licence under the Act is not synonymous with the applicant not having genuine need. Section 14 of the Act prohibits the grant of a licence where the person is under some disability, or is of unsound mind or where he is such type person who may endanger the public peace or public safety. The plea that the petitioner does not have a genuine need cannot be equated with any of the clauses under sec. 14 of the Act. There is no provision in sec. 14 of the act to refuse a licence if the need of the applicant is not genuine. A Division Bench of this Court in the case of Ram Shanker Vs. State of U.P., 1980 A.W.C. 154, has laid down that the absence of genuineness of the need is not a ground for refusing a licence under Sec. 14 of the Act. . Lack of genuineness of the need is therefore not one of the grounds for refusing a licence."
10. Section 14 of the Act commences with a non obstante clause (notwithstanding anything in Sec. 13) and then lays down the grounds for refusing to grant the licence. Since the grant of a licence can be refused only under the provisions of Sec. 14 and its sub-clauses, I do not find any provision which permits the licensing authority to refuse the grant of a licence on the ground that the applicant did not establish a genuine need. "
Similar view was taken by this Court in the case of Ram Chandra Yadav Vs. State of U.P. reported in 2009 (9) ADJ, 2007. The failure of the appellate authority to re-deem the illegality committed by the licensing authority, District Magistrate has rendered the order of appellate authority also totally unsustainable. Hence in view of the settled legal position on the issue that the fire arm licence cannot be refused merely on the ground that the need of licence is not genuine, the orders passed by the respondent no. 2 and 3 are totally unsustainable in the eyes of law and are liable to be set aside.


d. In W.P(MD)No.8408 Of 2006, before the Madurai bench of Madras High Court held that Clause b(ii) of the objects of the Bill that is extracted above makes it clear that it is the privilege of the Indian Citizen to possess arms and they are entitled to have licence. Licence could be denied only when the antecedent is bad.
e. In State of West Bengal and Others Vs. Committee for Protection of Democratic Rights, West Bengal & Others the Honourable Apex Court has held “It is thus, indubitable that the right of a citizen to protect himself, his family and property are integral part of RIGHT TO LIFE guaranteed by ARTICLE 21 of the Constitution, subject to the limitations contained therein. While considering such application, the licensing authority shall not only keep in view the statutory provisions of the act, but also the constitutional parameters relating to the applicant’s fundamental right to life.
Undoubtedly, it is imperative for the state to ensure that possession of arms by the people under license is not misused for unlawful purposes. The licensing authority should therefore be conceded with the power and discretion to prevent such misuse by making strict scrutiny of the antecedents of the applicant and the potential of misuse of arms. But, in process it is not permissible for the authority to be subjective in its assessment of existence of reason for grant of a license. a law abiding citizen would always like to have a fire arm for a bona fide purpose, for, he is aware of the consequences of its misuse.
3. In the same checklist Sr. No. 10 asks for ITR (Income Tax Return) filed in last 3 years, consecutively. As per the preamble of The Constitution of India, in Article 14-16 guarantees Right to Equality and Article 16 specifically guarantees Right to Equality of Opportunity. Apart from this, Section 14 (2) of the Arms Act of India 1959 states that “The licensing authority shall not refuse to grant any license to any person merely on the ground that such person does not own or possess sufficient property”. Hence there is no reason of asking for an applicant’s Bank Details, Property Details or Details related to his income or movable and immovable assets.
4. Serial No. 13 of the same checklist asks for “Solid Grounds for the Grant of an Arms License under Arms Act of India 1959. As discussed in Part-A, 2 of this letter has already discussed this point and in the eyes of law Sr. No. 13 should be null and void for being arbitrary and illegal.
5. In the form 52 for the Grant of Arms License, the Performa of Enquiry Form for the nearest Police Station in Serial No. 6 of the Enquiry Performa of the Form 52 asks “If the applicant pays income tax or not and if yes how much?” This question is again a violation of Article 14-16 of the Constitution of India as well as Section 14 (2) of the Indian Arms Act 1959 as discussed Part-A, 2 (d) of the letter.
6. In the form 52 for the Grant of Arms License, the Performa of Enquiry Form for the nearest Police Station in Serial No. 8 of the Enquiry Performa of the Form 52 asks about the Property Tax and Land Revenue paid by the applicant as well asks about the immovable asset of the applicant which again is arbitrary and illegal as discussed in Part A, 5 of the letter.
7. In the form 52 for the Grant of Arms License, the Performa of Enquiry Form for the Mamlatdar in Serial No. 4 again asks for the details of the applicants immovable property and in Serial No. 5 asks the details of the salary of the applicant in case if he is employed for his services.
8. Serial No. 11 of the Perfoma for the Inquiry Form to Mamlatdar as in Form 52 for the application of grant of Arms License asks the “Status” of the applicant. In the light of the laws of the land and the Constitution of India. To bias applicants on the basis of “Status” is arbitrary and illegal. “Status” whether social or economical and any decision based on the consideration of “Status” of the applicant is a clear violation of Right to Equality of a person apart from violation of his Right to Life and Liberty. Also, there is no broad or narrow definition of “Status” available is the constitution of India. In the eyes of law every citizen of India is equal and no bias on the base of “Status” can be made. Apart from this Honourable Supreme Court of India has already held that this kind of licensing procedure has made Right to Self Protection limited to VVIPs and Millionaires. Arms License is issued to legally own, keep, carry and bear firearms, which are not objects to show off one’s “Status” but these are objects for defence of one self’s life, property and family.
9. Serial No. 12 of the Perfoma for the Inquiry Form to Mamlatdar as in Form 52 for the application of grant of Arms License asks the amount which applicant pays as Income Tax. As already discussed earlier the sole purpose of asking for the income tax returns’ copies, bank statements, and details of other financial transaction is to know about the income and movable asset of the applicant. Reports based on these kinds of financial details of the applicant are not legal in the eyes of law.


“PART-B”


1. Most of the times an Arms License application is rejected by the Licensing Authority on the fact that the Applicant is not a Permanent Resident of Gujarat and also sometimes that the applicant has been residing on the given address for less than 3 years in Gujarat.

a. In case of Ashok Kumar Harakchand Shah vs. State of Gujarat on April 04, 2000 The Honourable Gujarat High Court has held that “A person can apply from the place where he ordinarily resides and it is not limited to only the citizens of India. Even if a person is not a citizen of India but ordinarily resides in India can as well as Bona-fide tourist visiting India can apply for an arms license for the purpose of self defence or any other reasonable purpose prescribed by the arms act of India 1959.”

b. In Bhupendra Kumar Tripathi Vs. State of UP the Honourable High Court of Allahabad held in para 12 (on the basis of UOI Vs. Dudh Nath Mishra and Others AIR 2000 SC 525) “From the aforesaid analysis it is apparent that the word “residence” is generally understood as referring to a person in connection with the place where he lives and may be defined as one who resides in a place or one who dwells in a place for a considerable long period of time as distinguished from one who merely works in a certain locality and comes casually for a visit and the place of work or the place of casual visit are different from the place of ‘residence’. There are two classification of the meaning of the word “residence”. First in the form of permanent and temporary residence and second classification is based on the de facto and de jure residence. Thus the de facto residence as given in Black Law Dictionary, 8th Edition. Thus de facto residence is also to be understood as the place where one regularly resides as different from the place where he is connected to by mere ancestral connections or political connections or connection by marriage.
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d. The place where a citizen resides for a considerable long duration of time and not merely visits is defined as a residence in the eyes of law as held by the Supreme Court of India. Since the applicant has already holds the apartment through a lease agreement with the owner of the property hence in the eyes of law the address mentioned in the application should be considered to be his address of residence. Also, the point to noted that the Government of India accepts that a person can apply for a Passport under Passport Act of India 1967 from the place where he has been normally residing since last 1 year.

2. Rejection of an Arms License on the basis that the applicant is not a resident of Gandhinagar district the applicant may commit a crime with his licensed weapon, if the license is granted, and flee out from Gujarat to avoid arrest.

a. In the case of Ashok Kumar Harakchand Shah vs. State of Gujarat on April 04, 2000 the Honourable High Court of Gujarat has also found in Para 18 that “ It was also argued by learned AGP that in such cases if the license is granted even under Section 3 for the purpose of self protection to any person, who is not a citizen of India (please note that in this case the applicant is a Citizen of India) and if he commits any offence and flees from this country , it will not be possible for the state to hold up him in case he misuses the arm for which the license is granted to him, and therefore the license should not be granted and right should be made available only to citizen who are permanent resident of Gujarat. If any person misuses the license, there are provisions under the relevant law to take care of it. The grant of an arms license cannot be denied based on an unfound fear. On the basis of such unfound fear a person cannot be denied to practise his Fundamental Rights guaranteed by the constitution of India, the Right to Self Defence, The Right to Life and Personal Liberty as well as The Right to Self defence Granted under IPC Section 96-106.
b. The honourable High Court of Allahabad in Pawan Kumar Jha Vs. State of U.P. and Others (2010(10) ADJ 782 has held that undue restriction on keeping and bearing arms OUGHT NOT be based on unfound fear. License is normally to be granted unless there is something adverse.
c. In Ajay Kumar Gupta and State of U.P. and Others in Writ-C no. 49301 of 2011 court held in Para 8 “The authorities empowered to grant license under the act ought not to behave as if they are part of the old British sovereignty and applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian Citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of application with more pragmatic and practical approach…”
 

3. Rejection of an Arms License on the basis that the applicant has not enough movable and immovable property to defend, he does not require an arms license or on the basis that he does not enjoy a high “Status” in society and grant of arms license for self defence is not required.

a. Section 14 (2) states that “ The licensing authority shall not refuse to grant any license to any person merely on the ground that such person does not own or possess sufficient property”; hence rejection of an Arms license on the abovementioned basis is completely illegal and arbitrary.

4. Rejection of an Arms License on the basis that it is not in public interest/public peace/public safety to grant a weapon license to the applicant.

a. In Ganesh Chandra Bhatt Vs. D.M. of Almora and Others, 12 March 1993 learned Justice M. Katju held in Para 78 of the judgement “As regards section 14 (1)(b)(ii) I am of opinion that the words “public peace” and “public safety” do not mean ordinary disturbance of law and order. Public safety means safety of the public at large and not safety of a few person only. Hence a license cannot be refused/suspended/called or its renewal refused merely because there is an ordinary breach of law and order.
b. In State of West Bengal and Others Vs. Committee for Protection of Democratic Rights, West Bengal & Others the Honourable Apex Court has held “It is thus, indubitable that the right of a citizen to protect himself, his family and property are integral part of RIGHT TO LIFE guaranteed by ARTICLE 21 of the Constitution, subject to the limitations contained therein. While considering such application, the licensing authority shall not only keep in view the statutory provisions of the act, but also the constitutional parameters relating to the applicant’s fundamental right to life.
Undoubtedly, it is imperative for the state to ensure that possession of arms by the people under license is not misused for unlawful purposes. The licensing authority should therefore be conceded with the power and discretion to prevent such misuse by making strict scrutiny of the antecedents of the applicant and the potential of misuse of arms. But, in process it is not permissible for the authority to be subjective in its assessment of existence of reason for grant of a license. a law abiding citizen would always like to have a fire arm for a bona fide purpose, for, he is aware of the consequences of its misuse.
c. The honourable High Court of Allahabad in Pawan Kumar Jha Vs. State of U.P. and Others (2010(10) ADJ 782 has held that undue restriction on keeping and bearing arms OUGHT NOT be based on unfound fear. License is normally to be granted unless there is something adverse.


5. There is no “Genuine Need” of an Arms License by the applicant and Liberal grant of Arms License will cause flood or arms in the society and can cause rise in crime.

a. In the High Court of Judicature- Andhra Pradesh at Hyderabad (Special Original Jurisdiction) Writ Petition No. 21780 of 2009 Honourable Mr. Justice C. V. Nagarjuna Reddy held that “It is an undeniable fact that the present day society is strife torn. Instances of burglary, dacoity, house breaking, robbery etc. are on increase on one hand and anti-social and anti-national elements are on a rampage on another. A situation may develop into a sudden and unforeseen manner, eg. A gang of dacoits may suddenly break into the house of a citizen in the dead of the night or a terrorist may try to kill a person or a sudden riot may take place without anyone anticipating even moments before such events taking place. The state is unable to fully protect the lives of its citizens and more often the police arrives at the scene after the damage is done only to find out the cause for the occurrence. As a result, the innocent victims are falling prey to the violence unleashed by desperados. It is in this situation that the state should feel the responsibility of protecting the lives and properties of the citizen by nationally interpreting the provisions of the Act to advance the purpose for which it is made.
b. In the same case the Honourable justice held “Apart from the statutory provisions referred to above, there exists a constitutional dimension to the case. Article 21 of the Constitution of India mandates that no person shall be deprived of his life and personal liberty except the procedure established by law. Over a period, judicial interpretation of Article 21 expands its horizon by leaps and bounds. The restricted interpretation of the article which was held to encompass many facets of human life. In M Nagaraj Vs. Union of India the Supreme Court traced change of trajectory of interpretation of Article 21 three decades after A. K Gopalan (2 Supra).
c. As per the data provided by NCRB (National Crime Records Bureau) less than 01% of the total homicide committed in India using firearms is committed by Licensed Firearm.
It implies that 90% of the total crime committed by firearms is committed by unlicensed weapon which include sophisticated weapons such as AK47, AK56 and other military pattern assault rifles and weapons. A civilian is only asking for a non-prohibited bore weapon which is limited to revolver or semi automatic pistols and bolt rifles with a limited capacity and fire power. The mentioned 01% deaths that are categorized under “Homicide” also contain the no. of deaths in accidental firing, celebratory firing etc.
Reference: http://ncrb.nic.in/CD-CII2013/CII13-TAB ... %203.7.pdf
d. In W.P(MD)No.8408 Of 2006, before the Madurai bench of Madras High Court held that Clause b(ii) of the objects of the Bill that is extracted above makes it clear that it is the privilege of the Indian Citizen to possess arms and they are entitled to have licence. Licence could be denied only when the antecedent is bad.
e. In Writ Petition no. 39660 of 2008, The high Court of Allahabad High Court held that “In the present case the District Magistrate, Ghazipur has rejected the petitioner's application for grant of fire arm licence inter alia on the grounds that the petitioner's brother was a criminal and drug addict and that the petitioner's need / requirement of the fire arm licence was not genuine. The first ground on which the District Magistrate refused fire arm licence to the petitioner that his brother was a criminal and a drug addict is not covered under Section 14(1) of the Act hence refusal to grant fire arm licence by the respondent no.2 on the first ground mentioned in his order can not be sustained. Now coming to the second ground on which the District Magistrate refused to grant fire arm licence, a Division Bench of this Court in the case of Ram Shanker Vs. State of U.P. 1980 A.W.C. 154, has laid down that the absence of genuineness of the need is not a ground for refusing a licence under Section 14 of the Act. Lack of genuineness of the need is therefore, not one of the grounds for refusing a license.
f. Identical question was considered by the learned Single Judge in Case of Ram Khelawan Misra Vs. state of U.P. and another, 1982 A.W.C.123 and in paragraph nos. 6 and 10 of the aforesaid judgment this court held as under:
"6. In the present case, the District Magistrate has in his order stated that
the S.D.M. and the Superintendent of Police have written ' No objection' on the application of the petitioner, but that was not a recommendation for the grant of a licence. He has ultimately observed that the need of the applicant was not genuine. It would, therefore, be seen that the order passed by the District Magistrate does not come under any of the clauses of Sec. of the Act. The expression to be for any reason unfit for a licence under the Act is not synonymous with the applicant not having genuine need. Section 14 of the Act prohibits the grant of a licence where the person is under some disability, or is of unsound mind or where he is such type person who may endanger the public peace or public safety. The plea that the petitioner does not have a genuine need cannot be equated with any of the clauses under sec. 14 of the Act. There is no provision in sec. 14 of the act to refuse a licence if the need of the applicant is not genuine. A Division Bench of this Court in the case of Ram Shanker Vs. State of U.P., 1980 A.W.C. 154, has laid down that the absence of genuineness of the need is not a ground for refusing a licence under Sec. 14 of the Act. . Lack of genuineness of the need is therefore not one of the grounds for refusing a licence."
10. Section 14 of the Act commences with a non obstante clause (notwithstanding anything in Sec. 13) and then lays down the grounds for refusing to grant the licence. Since the grant of a licence can be refused only under the provisions of Sec. 14 and its sub-clauses, I do not find any provision which permits the licensing authority to refuse the grant of a licence on the ground that the applicant did not establish a genuine need. "
Similar view was taken by this Court in the case of Ram Chandra Yadav Vs. State of U.P. reported in 2009 (9) ADJ, 2007. The failure of the appellate authority to re-deem the illegality committed by the licensing authority, District Magistrate has rendered the order of appellate authority also totally unsustainable. Hence in view of the settled legal position on the issue that the fire arm licence cannot be refused merely on the ground that the need of licence is not genuine, the orders passed by the respondent no. 2 and 3 are totally unsustainable in the eyes of law and are liable to be set aside.


6. Rejection of an Arms License on the basis that the applicant does not have any grave immediate danger or perceived threat to life, neither any attempt to life of the applicant has been made in recent past. / The applicant does not have a genuine need.

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b. In Writ Petition No. 21780 of 2009 the High Court oj Judicature, Andhra Pradesh, Hyderabad held “Unless Licensing authority is satisfied that any of the grounds mentioned in section 14(1)(b) exists, an application for grant of an arms license shall not be refused on a vague ground such as absence of genuine need.
c. In Ganesh Chandra Bhatt Vs. District Magistrate of Almora, Allahabad High Court, Judgement Date March 12, 1993 and in Petition No. 21780 of 2009 the High Court oj Judicature, Andhra Pradesh, Hyderabad held that “It must be held that the normal rule should be grant of the arms license, and refusal on the ground of unfitness should only be for very strong reason e.g. Involvement in a heinous crime.”
d. As mentioned above In the High Court of Judicature- Andhra Pradesh at Hyderabad (Special Original Jurisdiction) Writ Petition No. 21780 of 2009 Honourable Mr. Justice C. V. Nagarjuna Reddy held that “It is an undeniable fact that the present day society is strife torn. Instances of burglary, dacoity, house breaking, robbery etc. are on increase on one hand and anti-social and anti-national elements are on a rampage on another. A situation may develop as sudden and unforeseen manner, e.g. a gang of dacoits may suddenly break into the house of a citizen in the dead of the night or a terrorist may try to kill a person or a sudden riot may take place without anyone anticipating even moments before such events taking place. The state is unable to fully protect the lives of its citizens and more often the police arrives at the scene after the damage is done only to find out the cause for the occurrence. As a result, the innocent victims are falling prey to the violence unleashed by desperados. It is in this situation that the state should feel the responsibility of protecting the lives and properties of the citizen by nationally interpreting the provisions of the Act to advance the purpose for which it is made.
e. In Case :- WRIT - C No. - 28401 of 2011Honourable High Court of Allahabad held that” In support of his contention he has placed reliance upon a decision of this Court in Writ Petition No. 39660 of 2008 (Vishal Kumar Singh Vs. State of U.P. & Ors.) decided on 12th March, 2010……. “The District Magistrate has rejected the application filed by the petitioner under Section 13 of the Arms Act, 1959 for grant of license for the reason that the petitioner has not been able to establish that there is any threat to his life and that he actually requires the firearms license. The reason assigned by the District Magistrate cannot also be accepted in view of the decision of this Court in Vishal Kumar Singh (supra) wherein it has been observed that the finding recorded that as petitioner has failed to establish that there is any threat to his life his need for firearm license is not genuine, is not a valid ground for refusing to grant the firearm license to the petitioner. It is, therefore, not possible to sustain the impugned order dated 23rd July, 2010 passed by the District Magistrate, Allahabad and the order dated 9th February, 2011 passed by the Appellate Authority. They are, accordingly, set aside.


7. Rejection of an Arms License on the basis that the Licensing Authority has been granted with right to reject an Arms License under Section 14 (3) & Section 14 (3)ii on his discretion.

a. In Writ Petition No. 38645 of 2011, Vinod Kumar Shukla vs. State of UP and Others, decided on 15.07.2011 the High Court of Judicature at Allahabad, Uttar Pradesh the court has said: “Firearm license can be denied only if the reason assigned by applicant or details given by him in application are not found to be correct but merely because there are one firearm license already possessed by one of the family member, the same cannot be denied. Grant of firearm license should ordinarily be an action and denial should be an exception.”
b. In Ajay Kumar Gupta and State of U.P. and Others in Writ-C no. 49301 of 2011 court held in Para 8 “The authorities empowered to grant license under the act ought not to behave as if they are part of the old British sovereignty and applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian Citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of application with more pragmatic and practical approach…”
c. In Ganesh Chndra Bhat Vs. District Magistrate of Almora, 1993 Honourable Court held In Para “77 It has come to my knowledge that the authorities often give licences valid only for a particular district. This again is arbitrary. A person needs protection wherever he goes and it is not that once he goes out of his district he is safe.In
In Para 78. As regards Section 14 (1) (b) (ii) I am of the opinion that words "public peace" or "public safety" do not mean ordinary disturbance of law and order. Public safety means safety of the public at large and not safety of a few person only. Hence a licence cannot be refused/suspended/cancelled or its renewal refused merely because there is an ordinary breach of law and order.
In Para 79. The distinction between "Jaw and order" and "public order" is well known vide State of U. P. v. Hari Shanker Tiwari AIR 1987 SC 992 and Gulab Mehra v. State of U.P . In my opinion the expressions "public peace" and "publice safety" in Section 14 of the Arms Act had the same meaning as "public order" under Section 3(2) of the National Security Act.”
d. In State of West Bengal and Others Vs. Committee for Protection of Democratic Rights, West Bengal & Others the Honourable Apex Court has held “It is thus, indubitable that the right of a citizen to protect himself, his family and property are integral part of RIGHT TO LIFE guaranteed by ARTICLE 21 of the Constitution, subject to the limitations contained therein. While considering such application, the licensing authority shall not only keep in view the statutory provisions of the act, but also the constitutional parameters relating to the applicant’s fundamental right to life.


8. Circular No.V-11016/16/2009 Arms issued my Ministry of Home Affairs, Government of India, dated 31.03.2010 guidelines deny grant of Arms License to the Applicant because of what so ever reason due to non-compliance with it.

a. In the Case of Keshavanand Bharati Vs. State of Kerala and Others. On 24 April 1973, Writ Petition (civil) 135 of 1970 it was held by the honourable court that any Notification cannot surpass a law passed in parliament and signed by the President of India for Execution.
b. In Case or Anil Varghese Vs. The DM & District Collector of Ernakulam, Kerala and Others on 01 November 2014; Writ Petition- Civil No. 34311 of in Para 6 the Honourable court held that “ The learned Government Pleader heavily relied on the Circular No.V-11016/16/2009 Arms dated 31.03.2010 issued by the Central Government and Circular No.76689/F1/09/Home dated 14.09.2010 issued by the State Government imposing restrictions on the renewal of arms licence. The argument of the State cannot be countenanced as it is trite that executive orders cannot override the express provisions of a statute. Therefore, I do not see any justifiable reason not to follow the decision in Chandran Nair's (cited supra) case. The W.P.(C) No. 34311 of 2014 ..4..impugned order does not reflect whether any of the grounds made mention of in Section 14 of the Act was there for refusing the licence. The licence was refused solely for the reason that the petitioner was not facing any imminent threat or danger to his life. Therefore, this Court feels that the matter requires a reconsideration by the respondent concerned. In the result, the writ petition is disposed of as under;”
c. In Ranjit Singh Etc. Etc vs Union Of India on 26 September, 1980, Supreme Court of India has held that policy or guidelines cannot take place of the Law.
d. In Poonam Verma & Others Vs. Delhi Developmental Authority on 13 Dec. 2007 Case no. Appeal (Civil)No. 1322 0f 2007 The Apex Court held that “Guidelines per se do not partake to the character of statute. Such guidelines in absence of the statutory backdrop are advisory in nature. This is because guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same.”

I most humbly request you to consider my application for the needful and direct the concerned authorities to do the required amendments so that the Rights and Interests of Common Man are not violated.

Sincerely,
Ankur Srivastava

[goodboy_mentor]

c. In Ranjit Singh Etc. Etc vs Union Of India on 26 September, 1980, Supreme Court of India has held that policy or guidelines cannot take place of the Law.

This judgement is not about policy, it is about “An applicant for a license is entitled to have it considered in accordance with the terms of the statute and to press for its grant on the basis of the criteria set forth in it”. It is discussed in the thread represented by the following link http://indiansforguns.com/viewtopic.php?f=3&t=17795

If you could wait for few days and not rush the matters. Will be sending one comprehensive write up for PIL/ write to spin_drift, will also send the copy of same to you. or preferably put up on this website for all to read. You could pick up suitable points for your letter or PIL/ writ to High Court.

Would like to add, the meaning of Article 141 of Constitution also includes the law declared by Supreme Court is the law of the land, to be followed by all, including all courts and courts of law.

[aadhaulya]

Wow Ankur, you have done a wonderful research and a proper case made out. But legally I am no expert and would suggest you follow GBM's suggestion as he is very competent legally.

Atul

[ankur_ank007]

Wow Ankur, you have done a wonderful research and a proper case made out. But legally I am no expert and would suggest you follow GBM's suggestion as he is very competent legally.

Atul

Thanks Atul ji for your appreciation.
I thought fighting for whether RKBA is a fundamental right or not, I should fight for what various courts have held with respect to the AL applications. If the honourable court will consider my points states will be either bound to do so or they will appeal in honourable SC, leading to a debate.

Regards

[PRITAM PATEL]

Dear Ankur,

Do you really believes that Home Secretory has interest/time to read such a long letter and will act as your desire ???

I hope you understand, what I mean to say.........!!!!1

Best of luck

keep us informed any progress

pritam

[ankur_ank007]

Dear Ankur,

Do you really believes that Home Secretory has interest/time to read such a long letter and will act as your desire ???

I hope you understand, what I mean to say.........!!!!1

Best of luck

keep us informed any progress

pritam

Hi Pritam ji,

I truly believe that he will not even read the letter. However the PIL or Writ discussing the same concerns will be heard definitely and this letter to Home Secretary is only an alternative which courts ask for while filing a Writ. This letter will work as a record that I contacted home secretary before approaching the high Court.
It's better to try anything and everything before the it takes the last breath.

Regards,

Added in 10 minutes 18 seconds:

c. In Ranjit Singh Etc. Etc vs Union Of India on 26 September, 1980, Supreme Court of India has held that policy or guidelines cannot take place of the Law.

This judgement is not about policy, it is about “An applicant for a license is entitled to have it considered in accordance with the terms of the statute and to press for its grant on the basis of the criteria set forth in it”. It is discussed in the thread represented by the following link http://indiansforguns.com/viewtopic.php?f=3&t=17795

If you could wait for few days and not rush the matters. Will be sending one comprehensive write up for PIL/ write to spin_drift, will also send the copy of same to you. or preferably put up on this website for all to read. You could pick up suitable points for your letter or PIL/ writ to High Court.

Would like to add, the meaning of Article 141 of Constitution also includes the law declared by Supreme Court is the law of the land, to be followed by all, including all courts and courts of law.

Hello GBM,

Points noted with regards.

Kindly share once the comprehensive writeup is ready. I will be more than glad if I could be of any help.

Regards

[jashwantsinh]

May be, the Home secretary will not read amid all disturbance in the state or otherwise, But, surely its awakening. Lets push an
efforts undertaken. This is surely one of the best efforts. to wait till we get goodboy_mentor's precious advice/suggestion would be
fair fair enough.

[ankur_ank007]

May be, the Home secretary will not read amid all disturbance in the state or otherwise, But, surely its awakening. Lets push an
efforts undertaken. This is surely one of the best efforts. to wait till we get goodboy_mentor's precious advice/suggestion would be
fair fair enough.

Jaswantsih Ji,

Thanks for your appreciation too. Even I am also neither a law practitioner nor a law student however I tried to draft this letter in a proper manner. The write up when completed by GBM and Spin_drift will be much more educating about the legalities and constitutional remedies of RKBA. May be the Home Secretary is busy dealing with the turbulence in the state or maybe he will find this letter too lengthy and boring to read or simply this can hurt his ego; but still we will have a point that we wrote about it to the home secretary of the state before filing a writ. I am waiting desperately for the write ups by GBM and spin_drift before I execute my plan. Without the advice of the torchbearers of NAGRI and senior members of IFG I won't do anything. It may harm our cause and may also impart a negative effect on our efforts.

[jashwantsinh]

Ankur,

i predict It would a long fight for right and you see home secretary (of any state) would hardly look in to as they are always
BUSY in handling/adjustment of Government and it's interest!!!!. and could handover such an issue to one their obedient to
carry-on show further. So, an adoption of a legal way is the best option for which, i think, we are on the way. Also RKBA,
as you have stated could play a vital role in our fight for right and hope it lasts till the goal is reached.

[ankur_ank007]

Ankur,

i predict It would a long fight for right and you see home secretary (of any state) would hardly look in to as they are always
BUSY in handling/adjustment of Government and it's interest!!!!. and could handover such an issue to one their obedient to
carry-on show further. So, an adoption of a legal way is the best option for which, i think, we are on the way. Also RKBA,
as you have stated could play a vital role in our fight for right and hope it lasts till the goal is reached.

Sir,

Agreed without differing from anything you've said. Most of the IAS/IPS whether they are the LAs , HS or SP of the area from which the application of LA has been made are ignorant of the rights of the applicant as a citizen. They wilfully want to suppress the RKBA just to sooth their egos. This is going to be a long fight sir. Each and every piece of document, Judgement, interpretation is needed to be considered and brought forward. People like GBM, spin_drift, Abhijeet ji and many more people who understand the judicial terms and interpretations better are of great help. Claiming RKBA is also going to be a fight for us because such an issue at such a big platform may have never been discussed before.

[ankur_ank007]

https://en.wikipedia.org/wiki/District_ ... _v._Heller

[goodboy_mentor]

If you could please tell what is that you want to convey by providing the link for District of Columbia vs. Heller judgment?

[ankur_ank007]

If you could please tell what is that you want to convey by providing the link for District of Columbia vs. Heller judgment?

My Apologies GBM, actually I was posting using my cell phone. Somehow, the link only was posted and the pint which I wanted to mention was not posted.

I wanted to bring the "Decision of the Supreme Court of the USA" to your notice in this case, which is;

Decision[edit]
The Supreme Court held:[44]

(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
(2) Like most rights, 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: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
(3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
The Opinion of the Court, delivered by Justice Scalia, was joined by Chief Justice John G. Roberts, Jr. and by Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.[45]

Second Amendment findings and reasoning for the decision[edit]
The Illinois Supreme Court in People v. Aguilar (2013), summed up the Heller's findings and reasoning:

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court undertook its first-ever “in-depth examination” of the second amendment’s meaning Id. at 635. After a lengthy historical discussion, the Court ultimately concluded that the second amendment “guarantee the individual right to possess and carry weapons in case of confrontation” (id. at 592); that “central to” this right is “the inherent right of self-defense”(id. at 628); that “the home” is “where the need for defense of self, family, and property is most acute” (id. at 628); and that, “above all other interests,” the second amendment elevates “the right of law abiding, responsible citizens to use arms in defense of hearth and home” (id. at 635). Based on this understanding, the Court held that a District of Columbia law banning handgun possession in the home violated the second amendment. Id. at 635.[46]

Issues addressed by the majority[edit]
The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.

The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; more precisely, Scalia asserts in the Court's opinion that the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: "'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings...."

With that finding as anchor, the Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment – a purpose not previously articulated by the Court – and the "in common use at the time" prong of the Miller decision: since handguns are in common use, their ownership is protected.

The Court applies as remedy that "[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "Respondent conceded at oral argument that he does not 'have a problem with ... licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."

In regard to the scope of the right, the Court wrote, in an obiter dictum, "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."[47]

The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the "in common use at the time" prong of the Miller decision, which by itself protects handguns, over the first prong (protecting arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"), which may not by itself protect machine guns: "It may be objected that if weapons that are most useful in military service – M16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home."[48]

The Court did not address which level of judicial review should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: "ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." The Court states, "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."[49] Also, regarding Justice Breyer's proposal of a "judge-empowering 'interest-balancing inquiry,'" the Court states, "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach."[50]

Dissenting opinions[edit]
In a dissenting opinion, Justice John Paul Stevens stated that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent, and that the court had "bestowed a dramatic upheaval in the law".[51] Stevens also stated that the amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense" which was present in the Declarations of Rights of Pennsylvania and Vermont.[51]

The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."

Justice Stevens' dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia's handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.

The Breyer dissent looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that "guns were responsible for 69 deaths in this country each day.'"

With these two supports, the Breyer dissent goes on to conclude, "there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." It proposes that firearms laws be reviewed by balancing the interests (i.e., "'interest-balancing' approach") of Second Amendment protections against the government's compelling interest of preventing crime.

The Breyer dissent also objected to the "common use" distinction used by the majority to distinguish handguns from machineguns: "But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun...There is no basis for believing that the Framers intended such circular reasoning."[52]